i 


T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


TREATISE 


ON  THE 


LAW  OF  FIXTURES 


BY 


MARSHALL  D.  EWELL,  LL.  D. 


SECOND  EDITION 


EDITED  AND  ANNOTATED 


BY 


FRANK  HALL  CHILDS,  LL.  B. 


CHICAGO 

CALLAGHAN  &  COMPANY 

1905 


Copyright   1876 

BY 

CALLAGHAN  &   COMPANY 


Copyright   1905 

BY 

CALLAGHAN  &  COMPANY 

^  r , 

1905 


CENTRAL   TYPESETTING    CO. 
CHICAGO 


AUTHOR'S  PREFACE 


No  treatise  upon  the  subject  of  Fixtures  professing  to  give 
anything  like  exhaustive  references  to  the  numerous  cases  on 
the  subject  in  England  and  the  United  States  having  been  pub- 
lished since  the  publication,  in  the  year  1855,  of  the  American 
edition  of  Ferard  on  Fixtures,  no  apology  for  the  presentation 
of  this  volume  to  the  profession  is  deemed  necessary,  in  the 
preparation  of  which  no  labor  has  been  spared  to  make  the 
references  to  the  adjudged  cases  upon  the  suliject,  both  in  Eng- 
land and  the  United  States,  as  complete  as  the  defective  indexes 
to  many  of  the  volumes  of  reports  of  adjudged  cases  would 
permit.  Since  the  publication  of  the  work  above  referred  to, 
cases  upon  the  subject  have  multiplied  to  a  considerable  extent; 
and  with  the  multiplication  of  the  cases,  the  conflict  of  authority 
upon  many  questions  (already  sufficiently  distressing  to  persons 
having  occasion  to  examine  the  subject)  has  increased  to  such 
an  extent  that  it  is  scarcely  an  exaggeration  to  state,  as  was 
observed  by  Bacon,  J.,  in  Noyes  v.  Terry,i  that  a  judge  might, 
in  any  given  case,  decide  either  way  without  much  danger  of 
having  his  judgment  impeached,  or  of  failing  to  find  some 
authority  to  support  it.  Such  being  the  case,  the  author  has 
endeavored  to  deduce  from  the  cases  the  principles  of  decision 
which  seemed  to  him  to  be  best  supported  by  reason,  as  well  as 
authority,   and  to  present  the   same    with    references    to    the 

1  1  Lans.,  220  (1869).  In  referring  to  the  same  subject,  Lynch,  J.,  in  Ee 
Trevey,  14  L.  T.,  N.  S.,  193  (1866),  said:  "Perhaps  there  are  no  subjects 
in  law  more  difficult  to  deal  with  than  the  question  raised  as  to  fixtures  and 
the  several  relationships  of  property  that  are  allowed  to  influence  decisions 
as  to  them.  The  cases  are  legion ;  and  each  new  case  seems  only  the  more 
to  disturb  any  fixed  or  certain  rule  that  seemed  doducible  from  former 
cases,  and,  indeed,  on  most  questions  on  this  subject,  a  court  can  easily  give 
precedents  that  seem  to  uphold  the  doctrine  it  arrives  at  or  is  anxious  to 
arrive  at."  See,  also,  chap.  1,  Tlofinitions.  [See  remarks  of  .Tusiice  Bake- 
well  in  Goodin  v.  Elleardsvillc  Hall  Ass'n,  5  Mo.  App,,  289,  293  (1878).] 

iii 


tCf^O"^^ 


iv  author's  preface. 

authorities  supporting  them,  at  the  same  time  referring  in  the 
notes  to  such  cases  in  opposition  thereto  as  came  to  his  notice. 
The  notes  will  also  be  found  to  contain  quite  full  statements  of 
such  cases  as  seemed  to  merit  the  space  thereby  occupied;  and, 
if  the  author  has  in  some  instances  erred  in  judiiment  in  his 
statement  of  principles  (as  it  would  be  presumption  for  him  to 
suppose  that  he  has  not),  he  has  at  least  furnished  the  means  of 
verifying  his  statements,  and  correcting  any  errors  that  may  be 
found  to  exist. 

The  scope  of  the  work  involving  the  presentation  of  the  whole 
law  upon  the  subject  so  far  as  deducible  from  the  English  and 
American  reports,  it  has  not  been  deemed  advisable  entirely  to 
omit  even  those  portions  of  the  English  law  upon  the  subject 
which  have  become  either  partially  or  entirely  obsolete,  been 
changed  by  statute,  or  which  are  inapplicable  to  this  country. 
Such  topics  have  accordingly  been  presented,  and  will,  it  is  be- 
lieved, be  found  of  sufficient  historical  interest  (if  not,  also,  of 
some  practical  value)  to  warrant  the  small  space  thereby  occu- 
pied. The  general  plan  and  method  of  classification  adopted 
throughout  the  work  are  substantially  the  same  as  those  adopted 
by  Mr.  Ferard  and  most  other  authors  who  have  treated  the 
subject,  with  which  the  profession  have  become  familiar,  and 
for  changing  which  there  seemed  no  sufficient  reason.  Several 
supplemental  chapters  and  sections  have,  however,  been  rendered 
necessary  by  the  changes  effected  by  later  cases,  which  have  ac- 
cordingly been  inserted  in  what  seemed  their  natural  order. 

In  submitting  this  volume  to  the  judgment  of  the  profession, 
the  author  can  not  do  better  than  to  adopt  the  language  of  Bel- 
lewe  in  .the  preface  to  his  volume  of  Cases  temp.  Richard  II. : — 

"Befeeching  you  that  where  you  fhall  finde  any  faultes, 
which  either  by  my  infufficiency,  the  intricatenes  of  the  worke, 
or  the  Printer's  recklefnes  are  committed,  either  friendly  to 
pardon,  or  by  fome  meanes  to  admonifh  me  thereof." 

Marshall  D.  Ewell. 
CHICAGO;  October,  1876. 


EDITOR'S  PREFACE 

TO    THE    SECOND    EDITION 


This  edition  has  been  prepared  at  the  request  of  Dr.  Ewell, 
with  whom  the  editor  has  been  associated  for  many  years  both 
in  college  and  office  work.  About  three  thousand  new  cases 
have  been  added,  bringing  the  subject  doAvn  to  date.  The  pag- 
ing of  the  first  edition  is  retained,  all  of  the  new  matter  appear- 
ing in  brackets  in  the  notes.  Some  of  the  new  cases  decide  points 
which  have  already  been  settled,  and  such  cases  are  merely 
cited  in  the  proper  place ;  yet  many  new  points  have  been  passed 
upon  since  the  publication  of  the  first  edition,  and  those  cases 
have  been  incorporated  in  the  proper  place.  Citations  to  the 
National  Reporter  System,  Lawyers'  Reports  Annotated,  Ameri- 
can Decisions,  American  Reports,  American  State  Reports,  etc., 
will  be  found  in  the  Table  of  Cases. 

Although  the  former  edition  was  supposed  to  be  practically 
exhaustive  in  the  citation  of  cases,  the  editor  has  discovered  a 
number  of  cases  which  were  inadvertently  omitted,  and  these 
have  been  included  with  the  new  eases. 

The  tendency  of  the  courts  is  more  and  more  towards  liber- 
ality in  regard  to  the  right  to  remove  fixtures,  realizing  as  Lord 
Justice  Lindley  remarked  in  ILU  v.  ^ullock  [1897],  2  Ch.,  483, 
that  "there  is  such  a  thing  as  common  sense"  in  determining 
whether  a  fixture  is  removable,  though  occasionally  a  court  is 
found  which  laments  the  lack  of  a  rigid  rule  to  apply  to  every 
state  of  facts.  The  courts  of  the  eastern  states  seek  in  every 
way  to  modify  the  hardship  of  their  earlier  decisions  which 
were  based  upon  the  old  common  law  decisions  made  when  our 
ancestors  held  an  exalted  opinion  of  the  importance  of  real 
property,  and  when  the  tendency  was  to  concentrate  landed  in- 
terest in  few  hands;  and  even  in  cnnsorvative  England  decisions 
are  now  rendered  whicb   wonld   liavc  appalled  tho  Jnstinos  of 


,vi  editor's  preface. 

half  a  century  ago.  The  courts  of  our  western  states,  not  being 
so  rigidly  bound  by  the  doctrine  of  stare  decisis,  are  inclined  to 
adopt  a  liberal  rule  when  questions  in  regard  to  fixtures  have 
come  before  them  for  the  first  time. 

The  editor  has  tried  to  do  his  work  thoroughly  and  conscien- 
tiously, and  hopes  that  his  efforts  may  be  of  use  to  the  profes- 
sion. 

Frank  Hall  Childs. 

Chicago,  February,  1905. 


PREFATORY  NOTE  BY  THE  AUTHOR. 


This  edition  has  been  most  carefully  prepared  by  Mr.  Childs 
under  my  direction;  and  I  feel  confident  that  it  will  be  found 
to  be  both  accurate  and  exhaustive. 

Marshall  D.  Ewell. 

Chicago,  February,  1905. 


CONTENTS 


[eefekences  are  to  the  bottom  pages.] 

CHAPTER  I. 

PAGB. 

Definition  and  Nature  of  Fixtures 1 

I. — Definitions    1 

II. — Tests  as  to  whether  a  Fixture  or  not ; — Annexa- 
tion    13 

III. — Constructive  Annexation  45 

IV. — Intention  53 

V. — Severance   ^2 

CHAPTEE  II. 

Of  the  Right  to  Fixtures,  as  between  the  Owner  of 
THE  Freehold  and  a  Stranger  making  Annexa- 
tions thereto   77 

CHAPTER  III. 

Of  the  Legal  Effect  of  Annexation  of  Chattels  to 
THE  Soil  of  another  with  his  Consent,  or  under 
A  Contract,  express  or  implied,  as  to  their  Re- 
moval    102 

CHAPTER  IV. 

Of  Fixtures  as  between  Landlord  and  Tenant 121 

I. — Trade  Fixtures  and  Mixed  Cases 126 

II. — Apricnltural  Fixtures    1^^ 

]\Ianure 1^^ 

III. — Fixtures  set  up   for  Purposes  of   Ornament  or 

Convenience,  or  for  Domestic  Use 184 

IV.— When  the  right  of  Removing  Fixtures  must  be 

Exercised  1^ ' 

vii 


Viii  CONTENTS, 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.]  PAGE. 

V. — Of  the  Right  of  Removing  Fixtures  as  Affected 

by  Special  Agreements  in  relation  thereto.  . .  215 
Covenants  to  Repair,  etc.,  and  to  Yield  up 

in  Repair 233 

Effect    of    Contracts    entered    into    subse- 
quently to  the  Original  Demise 252 

CHAPTER  V. 

Of  Fixtuees  as  Between  Tenants  for  Life  or  in  Tail 
AND  Their  Personal  Representatives,    and    the 

Remainderman  or  Reversioner 263 

I. — As  Between  Tenants  for  Life  or  in  Tail  during 
their  Lives,  and  the  Remainderman  or  Re- 
versioner      264 

First.     Tenants  for  Life 264 

Second.     Tenants  in  Tail 267 

II. — Of  Trade  Fixtures  and  Mixed  Cases,  as  between 
the  Personal  Representatives  of  Tenant  for 
Life  or  in  Tail,  and  Remainderman  or  Re- 
versioner      269 

III. — Of  Ornamental  and  Domestic  Fixtures,  etc.,  as 
between  the  Personal  Representatives  of 
Tenant  for  Life  or  in  Tail,  and  Remainder- 
man or  Reversioner 276 

IV. — Of  the  Right  of  Ecclesiastical  Persons  and  their 

Representatives  to  Fixtures — Dilapidations.  .  285 
v. — "Within  what  Time  the  Right  of  Removing  Fix- 
tures as  between  the  Personal  Representa- 
tives of  Tenant  for  Life  or  in  Tail,  and  the 
Remainderman  or  Reversioner  must  be  Exer- 
cised  '. 293 

CHAPTER  VL 

Of  Fixtures  as  between  Heir  and  Executor 295 

CHAPTER  VII. 

Charters,  Heir-Looms,  etc 314 

I.— Charters    314 


CONTENTS.  •     IX 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.]  PAGE. 

II. — Heir-Looms  318 

III.— Annexations  to  the  Freehold  of  the  Church 324 

IV.— Deer,  Fish,  etc 327 

CHAPTER  VIII. 

Emblements,  etc 332 

CHAPTER  IX. 

Of  the  Transfer  op  Fixtures  by  Conveyance,  Mort- 
gage, Devise,  in  case  of  Bankruptcy,  etc.;  Regis- 
tration ;  Statute  of  Frauds,  etc 378 

I. — The  Question  as  Uninfluenced  by  any  Specific 

Intention   387 

II.— The  Question  as  Affected  by  the  Words  of  the 

Grant,  Contract,  etc 461 

III. — When  Fixtures  Pass  by  Devise  or  Bequest 473 

IV.— Of  the  Relation   Sustained  by  Recording  Acts 

to  the  Law  of  Fixtures 478 

The  Bills  of  Sale  Act 490 

V. — Bankruptcy,   etc 502 

VI.— Of  the  Sale  of  Fixtures    as    Affected    by    the 

Statute  of  Frauds 513 

VII.— Stamp  Acts  as  Relating  to  Fixtures 517 

VIII.— Estoppel    517 

IX. — Agreements  as  to  Valuation  of  Fixtures 523 

CHAPTER  X. 

Of  the  Seizure  and  Sale  of  Fixtures  on  Execution 537 

I. — As  against  the  Owner  of  the  Fee 537 

II. — As  against  a  Tenant 544 

CHAPTER  XI. 

Of  the  Exemption  of  Fixtures,  etc.,  from  Distress 549 

CHAPTER  XIL 

Of  Rights  and  Liabilities  Respecting  Land  as  Increased 
in  Value  by  the  Annexation  of  Personal  Chat- 
tels    557 


X  CONTENTS. 

[REFERENCES  AKE  TO  TUB  BOTTOM  PAGES.]  PAGE. 

I. — Taxation  in  the  United  States 557 

II. — Poor  Rates,  etc 567 

III. — Parochial  Settlements    582 

IV. — Qualifications    of    Electors    as   Related   to   Real 

Estate  Improved  by  Annexations  thereto. . . .  586 

CHAPTER  XIII. 

Legal  and  Equitable  Remedies  Respecting  Fixtures.  . . .  588 
I. — Of  the  Action  of  Waste,  and  Case  in  the  Nature 

of  Waste  588 

II. — Preventive  and  Equitable  Remedies 598 

Prohibition ; — Estrepement    598 

Injunction   601 

III.— Replevin    618 

IV.— Trespass    629 

v.— Trover   642 

VI.— Ejectment   657 

VII. — Actions  ex  Contractu 660 

CHAPTER  XIV. 

Of  the  Criminal  Law  as  Related  to  Fixtures; — Deo- 

DANDS   667 

I. — Larceny  667 

II. — Malicious  Injuries    673 

III.— Burglary   676 

IV.— Deodands    678 

Index  681 


TABLE  OF  CASES 


[kefeeences  are  to  the  bottom  pages.] 


Abbott    V.    Abbott,    75    Pac.    1040. 

340. 
Abell  V.  Williams,  3  Daly  17,     254. 
Abraham  v.  Bubb,  2  Freem.  Ch.  53. 

606,  608. 
Ackerman    v.   Hartley,   8    N.   J.   Eq. 

476.     613. 
Ackroyd  v.  Mitchell,  3  L.  T.  N.  S. 

236.     389,  390,  406,  411,  449,  610. 
Acton,  Ex  parte,  4  L.  T.  N.  S.  261. 

390,  448,  449,  452,  455,  504,  505. 
Adams  v.  Beadle,  47  la.  439,  29  Am. 

Rep.  487.     308,  338,  378. 
Adams  v.  Burton,  43  Vt.  36.     329. 
Adams  v.   Goddard,   48  Me.   212,   39 

Me.  144.     208,  209,  216,  229,  650. 
Adams  v.  Greenwich  I.  Co.,  9  Hun 

45.     379. 
Adams  v.  Kauwa,  6  Haw.  280.     19, 

94,  352,  658. 
Adams   v.    Lee,   31    Mich.    440.     69, 

400. 
Adams  v.  Leip,  71   Mo.  597.     361. 
Adams  v.  McKesson,  53  Pa.  St.  81. 

342. 
Adams    v.    Moulton,    McGloin     210. 

348. 
Adams  v.  Saint  L.  &  S.  F.  Ry.  Co., 

138  Mo.  242,  28  S.  W.  496,  29  S. 

W.  836.     163,  217. 
Adams  v.   Smith,  Breese  221.     333, 

541. 
Adams  v.  Tanner,  5  Ala.   740.     364, 

365. 
Adams  M.  Co.  v.  Interstate  L.  Assn., 

119  Ala.  97,  24  So.  857.     483. 
Adamson    v.    Mcllvaine,    3    Man.    29. 

388,   392,   443. 


Adamson  v   Rogers,   26   Can.   159,   22 

Ont.   App.   415.     10,   525. 
Advance    Coal    Co.    v.    Miller,    4    Pa. 

Dist.  352,  7  Luz.  Leg.  Reg.  R,  541. 

25,    33,    217,    223,    227,   546. 
Agate  V.  Lowenbeim,  57  N.  Y.  604. 

70. 

Agnew  V.  Jones,  74  Miss.  347,  23  So? 

25.     102. 
Agnew    V.    Whitney,     10     Phila.     77. 

246,   607. 
Ainslie,  Re,  30  Ch.  D.  485,  28  Ch.  D. 

89,   22  Cent.   Law  J.  378.     35,  63, 

264,   333,   334,  474. 
Ainsworth   v.   Lakin,    180   Mass.   397, 

62  N.  E.   746.     82. 
Albany  &  B.  Road,  Re,  94  App.  Div. 

509,  87  N.  Y.  Supp.  1104.     563. 
Alberson  v.  Elk  Cr.  Min.  Co.,  39  Ore. 

552,  65  Pac.  978.     30,  36,  57,  111, 

384. 
Albert    v.    Ulrich,    180    Pa.    St.    283, 

36  Atl.  745.     62,  87,  200,  388. 
Albin  V.  Riegel,  40  O.  St.  339.     343. 
Albion  R.  R.  R.  Co.  v.  Hesser,  84  Cal. 

435,   24  Pac.   288.     90. 
Aldine    Mfg.    Co.     v.     Barnard,     84 

Mich.  632,  48  N.  W.  280.     29,  663. 
Aldrich  v.  Bank  of  Ohiowa,  64  Neb. 

276,    89    N.    W.    772;    97    Am.    St. 

Rep.   643.      349. 
Aldrich  v.  Husband,   131   Mass.  480. 

111. 
Aldrich  v.  Parson,  6  N.  H.  555.     103. 
Aldrich  v.  ReynDlds,  1  Barb.  Ch.  613. 

344. 

Alexander    v.    Cowie,    19    N,    B.     (3 
Pug.  &  B.)  599.     84,  623,  624. 


XI 


xn 


TABLE  OF  CASES. 


[references  akb  to 

Alexander  v.  Holt,  59  Tex.  205.    365. 
Alexander   v.    Shonyo,    20   Kan.    705. 

74. 
Alexander  v.  Touhy,  13  Kan.  64.    103, 

216,    227. 
Alexandria  C.  B.  R.  &  B.  Co.  v.  Dis- 
trict of  Col.,  12  D.  C.  217.     558. 
Allan  V.  Eowe,  1  N.  B.  Eq.  41.     35, 

60,  61,  185,  195,  607. 
Allardice  v.  Disten,   11   U.   C,   C.   P. 

278.     236. 
Allen,  Be,   31   Ont.   335.     195. 
Allen  V.  Allen,  Mosely  112.     476. 
Allen  V.  Ashburn,   27   Tex.  Civ.  App. 

239,  65  S.  W.  45.     350,  365. 
Allen   V.    Dent,    72    Tenn.    676.      203, 

230,    652. 
Allen  V.  Elderkin,  62  Wis.  627,  22  N. 

W.  842.     345. 
Allen  V.  Gates,   73  Vt.   222,   50   Atl. 

1092.      144,   243,   482,   533. 
Allen  V.  Kennedy,  40  Ind.  142,     141, 

199,   205. 
Allen  V.  Lloyd,  2  Ir.  C.  L.  53.     364. 
Allen  V.  Mooney,  130  Mass.  155.     30, 

36,  389. 
Allen  V.  Scott,  38  Mass.  25.     67,  92, 

398,  537. 
Allen    V.    Woodard,    125    Mass.    400. 

33,   60,  469,  489. 
Allgood   V.    State,    95   Tenn.   471,    32 

S.   W.    208.     674. 
Alliance  T.  Co.  v.  Nettleton  Co.,   74 

Miss.  584,  21  So.  396.     633. 
Allison  V.  MeCune,  15  O.  726,  45  Am. 

Dec.  605.     387,   389,  595. 

Alt  V.  Grossclose,  61  Mo.  App.  409. 
374. 

Altes  V.  Hinckler,  36  III.  275,  85  Am. 

Dec.  407.     361,   362,  658. 
Alvia  V.   State,  42   Tex.   Cr.  424,   60 

S.  W.  551.     670. 

Alvord  Carriage  Mfg.  Co.  v.  Glea- 
son,  36  Conn.  86.  31,  314,  468, 
670. 


TUB    BOTTOM    PAGES.] 

Ambs  V.   Hill,   10   Mo.  App.   108,   13 

Mo.   App.   585.      35,   36,   154. 
Ambueld  v.  Matthews,  41  Minn.  537, 

43  N.  W.  477.     367. 
Amelung  v.  Seekamp,  9  Gill.  &  John. 

468.     601,   602. 
American    Brick    Co.    v.    Drinkhouse, 

59  N.  J.  L.  462,  36  Atl.  1034.     35, 

427. 
American  1.  Co.  v.  Middleton,  80  N. 

Y.  408.     646,  656. 
Ames,    Ex    Parte,    1    Low.    Dec.    567, 

7    Nat.    Bk.    Reg.    236.      110,   479, 

518. 
Ames  V.  Trenton  Brew.  Co.,  56  N.  J. 

Eq.  309,  38  Atl.  858,  57  N.  J.  Eq. 

347,  45  Atl.   1090.     9,   10,  32,  247. 
Amiers    v.    Chambers,    1    Mod.    35,    2 

Keb.   596.     333. 
Amiles    v.    Chambers,    1    Mod.    35,    2 

Keb.   596.     333. 
Anderson  v.  Ammonett,   77   Tenn.   1. 

533. 
Anderson  v.  Buckton,  1  Str.  192.    639. 
Anderson   v.   Creamery   Mfg.   Co.,   67 

Pac.  493,  56  L.  R.  A.  554.     420. 
Anderson  v.  Hapler,  34  111.  436.     626. 
Anderson  v.  How,  116  N.  Y.  336,  22 

N.  E.  695.     674. 
Anderson  v.  McEwen,  9  IT.  C,  C,  P. 

176.      71,   413.  ■ 
Anderson  v.  Reid,  14  App.  D.  C.  54. 

657. 
Anderson  v.  Strauss,  98  111.  485.    347. 
Anderson  v.   Swift,   106  Ga.   748,   32 

S.  E.  542.     533. 
Andrew  v.  Newcomb,  32  N.  Y.  417. 

368. 
Andrews  v.  Auditor,  28  Gratt.  115,  1 

Va.   Law  J.  92.     104,   558. 
Andrews    v.    Chandler,    27    111.    App. 

103.     32,  420.  437,  611. 
Andrews    v.    Costigan,    30    Mo.    App. 

29.     376. 
Andrews  v.  Day  B.   Co.,   132   N.   Y. 

^48,  30  N,  E.  831,  55  Hun  494,  9 


TABLE  OF  CASES. 


Xlll 


[HEFEKENCES  ARE  TO  THE  BOTTOM  PAGES.] 


N.  Y.  Supp.  916,  29  N.  Y.  St.  E. 

548.  247. 

Andrews  v.  Powers,  66  App.  Div.  216, 

72  N.  Y.  Supp.  597.  87,  107,  382. 

Angler    v.    Agrew,    98    Pa.    St.    587. 

594. 
Angler  v.  Bay  S.  Co.,  178  Mass,  163, 

59  N.  E.  630.     428. 
Anne  Arundel  County  v.  Balto.  Sugar 

Co.,  58  Atl.  211.     564. 
Annely  v.   DeSaussure,   12  S.  C.  488. 

407,  410,  411,  414. 
Anthony  v.  Haneys,  3  Bing.  186.     21, 

200. 
Anthony  v.  Rockefeller,  102  Mo.  App. 

326,   76   S.  W.  491.     255. 
Antoni    v.    Belknap,    102    Mass.    193. 

150,   17.5,  212. 
Antonio  Brew.  Assn.  v.  Arctic  Mach. 

Co.,  81  Tex.  99.     82. 
Antrim   v.   Doobs,    30   L.   E.,    Ir.   42, 

114,    140,    161.      544. 
Apolo    V.    Kauo,    7    Haw.     755,       35, 

116,  513,  522. 
Appeal  Tax  Ct.  v.  Baltimore  Co.,  50 

Md.    432.      558. 
Appeal    Tax    Ct.   v.    Nor.    Cent,    Ey. 

Co.,  50  Md,  417,     566, 
Appeal  Tax  Ct,  v.  Pullman  P,  C.  Co., 

50  Md.  452.     566. 
Argles   V.    McMath,   26    Ont.    224,    23 
Ont.    App.    44.      6,    141,    142,    143, 
202,    211,    213,    324,    251,   652. 
Arkwright  v.   Billings,  Sc,  Fac,   Dec, 

443, 
Arlington  Mill  Co.  v.  Yates,  57  Neb. 

286,   77   N.   W.   677.     32,   104. 
Armstrong  v.  Kloinhouso,  82  Ky.  303. 

1   Ky.  L.  R.  112,     13. 
Armstrong   v.   Lawson,    73    Ind.    498. 

374. 
Armstrong   v.    Oppenheimer,    84    Tex. 
365,  19  S.  W,  520.     657, 

Arnett  v,  Finney,   29  N,  J.   Eq,   309. 
425. 


Arnold  v.   Broad,   15   Col,   App,   389, 

62  Pac,  577,     594, 
Arnold  v,  Crowder,  81  111,  56,  25  Am. 
E,   260,    3   Cent,   Law   J,   658,      28, 
32,   303,   396,   440. 
Arnold  v.   Mundy,   6   N.   J.   L,   1,   10 

Am.    Dec.    356.      329, 

Arques  v,  Wasson,  51  Calif,  620,    367. 

Ashby   V.   Ashby,   59   N,   J,   Eq.   536. 

46  Atl.  528,  59  N,  J,  Eq,  547,  46 

Atl,  522,  62  K  J,  Eq,  618,  50  Atl, 

473.     146,   236,   243,   524,  609, 

Asher   v,    Mitchell,    9    111.   App,    335, 

412, 
Asher  Lumb,  Co,  v,  Cornett,  22  Ky. 
L,   E.   569,   58   S.   W.   438,   23  Ky, 
L,  E,  602,  63  S.  W,  974,     66,  333, 
376, 
Asher  L.  Co,  v,  French,  18  Ky.  L,  E, 

682,  37  S.  W.  149,     373, 
Asheville    Co,    v,    Southwick,    119    N, 
C.    611,    26    S.    E.    253.      138,    143, 
431. 
Asheville  Div,  S,  O,  T,  v,  Ashton,  92 

N.  C.  578,     660, 
Ashmun   v.   Williams,      8    Pick    402. 

105. 
Aspinwall   v.   Chicago   &  N.   W.   Ey. 

Co,,  41  Wis,  474,     90,  410, 
Astbury,  Ex  parte  L,  E.,  4  Ch,  App, 
630,  38  L.  J.  B,  9,  20  L,  T.  N.  S, 
997,  17  W.  R.  997,     20,  25,  46,  54, 
403,  434,  455,  508,  511, 
Aston  V,  Aston,  1  Ves.  Sr.  264.     266, 

606, 
Atcherley    v,    Vernon,    10    Mod.    529. 

320. 
Atchison,    T.    &    S.    F,    R.    R,    Co,   v, 
Morgan,  42  Kan.   23,  22  Pac,  995, 
4  L.  R.  A.  284,  16  Am,  St.  E,  471. 
28,  90,  98, 
Atkins  V,  Chilson,  7  Met.  398.     601, 
Atkinson,    Ex   parte,    1    M,   D,   &   D, 

300,       158. 
Atkinson  v.  Baker,  4  Term.  229,    315, 
625, 


XIV 


TABLE  OF  CASES, 


[KEFEBENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Atkinson  v.  Hewitt,  63  Wis.  396,  23 

N.  W.  889.     630. 
Atkinson   v.    Noad,    14   L.    Can.    159. 

141,    390,   395,  449,   481,   484,   660. 
Atkison  v.  Dixon,  96  Mo.  588,  10  S. 

W.   162.     202,   217. 
Atlantic  &  P.  E.  R.  Co.  v.  Lesueur, 

2  Ariz.  428,  19  Pae.  157.     558. 
Atlantic   Tr.   Co.   v.   Atlantic   Cy.    L. 

Co.,  64  N.  J.  Eq.  140,  53  Atl.  212. 

32,  61,  388,  390,  393,  436,  437,  442, 

461,  466,  483. 
Attorney  Gen.  v.  Baliol,  Col.,  9  Mod. 
.  411.      80. 

Attorney     Gen'l    v.    Duke    of    Marl- 
borough, 3  Mad.  498.     267. 
Attorney  G.  v.  Gibbs,  3  Y.  &  J.  333. 

539. 
Atwood  V.  Beck,  21  Ala.  590.     315. 
Aultman  Co.  v.  O  'Dowd,  73  Minn.  58, 

75   N.  W.   756.     347. 
Austell  V.  Swann,  74  Ga.  278.     523. 
Austin,  Ex  parte,  1  Dea.  &  Chit.  207. 

505. 
Austin  V.   Sawyer,   9   Cow.   39.     340, 

370. 
Austin  V.  Stevens,  24  Me.  520.     194. 
Australian  Bk.  v.  Colonial   Corp.,   15 

N.  S.  W.  L.  R.  464,  11  N.  S.  W. 

Wkly.  N.  105.     33,  403. 
Austral    Otis    Co.    v.    Kerr,    16    Vict. 

744,    12    Austr.   Law    T.    108.      33, 

479,  484. 
Avery    v.    Cheslyn,    3    Ad.    &    E.    75. 

155,  187,   188. 
Avitt   V.    Farrell,    68    Mo.   App.    665. 

366,  373,  632. 
Axminster  Parish  Case.     678,  679. 
Ayers  v.  Hawk,  11  Atl.  744.     368. 
Babley  v.  Vyse,  48  la.  481.     633. 
Bacchus    Com.    v.    Federal     Soc,     22 

Vict.  L.  E.  181.     205. 
Backenstoss    v.    Stahlor,    33    Pa.    St. 

254,  75  Am.  Dec.  592.     339,  341. 
Bacon  v.  Bowdoin,  39  Mass.  401,  43 
Mass.  591.     110,  397. 


Bacon  v.  Lewis,   33  Can.  L.  J.   680. 

64,  440,  457,  489. 
Bacon   v.   Smith,    1    Q.  B.   345,   4   P. 

&   D.  651.     592,   597. 
Badger   v.   Batavia   P.   Mfg.   Co.,    70 

111.   302.     401,   649. 
Bagley  v.  Columbus  S.  Ey.  Co.,  98  Ga. 

626,  25  S.  E.  638,  34  L.  R.  A.  28(5, 

58  Am.  St.  Eep.  325.     38,  335,  369, 

380. 
Bagley  v.  Rose  Hill  S.  Co.,   Ill   La. 

249,    35    So.    539.      396,    463,    466, 

516. 
Bagnell  v.  Villar,  12  Ch.  D.  812.     348. 
Bagnell   v.   Davies,    140   Mass.    76,  2 

N.   E.   786.     11. 
Bagshaw  v.   Farnsworth,   2  L.   T.  N. 

S.  390.     368. 
Bailey  v.  A.  Siege!  Co.,  54  Mo.  App. 

50.      35,    633. 
Bailey  v.  Oliver,  9  S.  W.  606.     365. 
Bailey  v.   Eichardson,   66   Calif.   416, 

5  Pac.  910.     527. 
Bailey  v.   Sweeney,  64  N.  Ham.   296, 

9  Atl.  543.     642. 
Bain  v.  Brand,  2  Sess.  Cas.  4th  Ser. 

258,  12  Scot.  Law  Eep.  124,  1  App. 

Cas.  H.  L.  762,  13  Scot.  Law  Eep. 

744,  3  Sess.  Cas.  4th  Ser.  H.  L.  16, 

18     Eng.      Repts.      44,      5      Sess. 

Cas.  4th  Ser.  607,  15  Scot.  Law  Rep. 

330.     6,   38,   297. 
Bain  v.  Clark,  10  John.  424.     353. 
Bainway  v.  Cobb.  99  Mass.  457.     37, 

63,   64,   305,   309. 
Bair  v.  Brown,  28  La.  An.  842.     340, 
Baird  v.  Jackson,  98  111.  78.     410. 
Baker   v.   Atherton,   15   Pa.   Co.   471, 

7  Luz.  Leg.  Reg.  R.  418.     462. 
Raker  v.  Central  Vt.   Ry.,  4  Rev.  de 

Jur.  454.     48,  489. 
Baker    v.    Davis,    19    N.    Ham.    325. 

391,  433,  443,  543. 
Baker  v.  Fessenden,  71  Me.  292.    426. 
Baker  v.  Howell,  6  S.  &  R.  476.     662. 
Baker  v.  Jordan,  3  O.  St.  438.     34L 


TABLE  OF  CASES. 


XV 


[KEFEKENCES    ABE   TO 

Baker  v.  MeClurg,  96  111.  App.  165, 

198  III.  28,  64  N.  E.  701,  59  L.  E. 

A.  131,  92  Am.  St.  Rep.  261.     32, 

137,   138,    139,   140,   141,   149,   lot, 

260. 
Baker  v.  Mclnturff,  49  Mo.  App.  505. 

363,  369. 
Baker    v.    National    B.    Co.,    96    111. 

App.  228.     607. 
Baker  v.  Normal,  81  111.  108.     99. 
Baker  v.   Pratt,   15   111.   571.     208. 
Baker  v.  Waldron,  92  Me.  17,  42  Atl. 

225.     11, 
Bald  V.   Hagar,   9  U.  C.  C.  P.   382. 

394,   537. 
Baldinger    v.    Levine,    83    App.    Div. 

130,_  82  N.  Y.  Supp.  483.     489. 
Baldwin  v.  Breed,   16  Conn.  60.     21, 

92,   106,   107,   109,  113,   380. 
Baldwin  v.  Merrick,  1  Mo.  App.  281. 

428. 
Baldwin    v.    Walker,    21    Conn.    168. 

61,  462,   653. 
Baldwin  v.   Young,   47  La.  A.  1466, 

17  So.  883.     484. 
Bales  V.   Gilbert,   84   Mo.   App.   675. 

529. 
Ball  V.  Benjamin,   73   111.   39.     35. 
Balliett  v.   Humphreys,   78   Ind.   388. 

623. 
Ballon  V.  Jones,  37  111.  95.    422,  521, 

623. 
Banfill  V.   Twyman,  71   111.  App.   253, 

172  111.  123,  49  N,  E.  985.     68,  69, 

435,    541. 
Bangor  &  P.  R.  R.  Co.  v.  Harris,  21 

Me.  533.     566. 
Bangor  Bk.  v.  Wallace,  87  Me.  28,  32 

Atl.  710.     348. 
Bangor  S.  Co.  v.  Shimer,  12  Pa.  Dist. 

777.     601. 
Bank  of  Chenango  v.  Cox,  26  N.  J. 

Eq.  452.     605. 
Bank   of   Lansingburgh   v.    Crary,    1 

Barb.   542.     65,  67,   33.3,   334,   367, 

375,  541,  542. 


THE   BOTTOM    PAGES.] 

Bank  of  Louisville  v.  Baumeister,  87 

Ky.  6,  7  S.  W.  170.     137,  407. 
Bank  of  Pa.   v.   Wise,   3  Watts   394. 

340. 
Bank   of   Victoria   v.   Langlands   Co., 

24  Vict.  230.    403. 
Banque   d'Hochelaga   v.   Watrous  E. 

Co.,  27  Can.  406,  5  Que.  Q.  B.  125. 

417. 
Banta  v.  Merchant,  45  App.  Div.  141, 

61  N.  Y.  Supp.  218.     341. 
Banton  v.  Shorey,   77  Me.  48.     373. 
Banyer    v.    Albany    I.    Co.,    85    App. 

Div.  122,  83  N.  Y.  Supp.  65.     379, 

465. 
Barber  v.  Roth,  19  Pa.  Co.  366.     36. 
Barclay,  Ex  parte,  L.  R.  9  Ch.  App. 

576,  43  L.  J.  B.   137,   25  L.  J.  B. 

1,  30  L.  T.  N.  S.  479,  5  DeG.  M.  cc 

G.   403,   2   M.   D.   &   DeG.   597,   35 

Eng.  L.  &  Eq.  169,  22  W.  R.  608, 

1  Jur.  N.  S.  1145.    5,  401,  473,  493, 

495,  498,  499,  500,  504,  505,  507. 
Barff  V.  Probyn,  64  L.  J.  Q.  B.  557, 

73  L.  T.  R.  118.     206,  657. 
Barker    v.    Central    Vt.    Ry.    Co.,    14 

Que.  C.  S.  467,  4  Rev.  de  Jur.  449. 

48. 
Barker    v.    Cincinnati    Brick    Co.,    4 

Ohio  Dec.   270,  3   Ohio   N.  P.   230. 

29,  136,  141,  146,  545. 
Barlow  v.  Hudson,  5  Ky.  L.  R.  604. 

325. 
Barnard  v.  Leigh,  1   Stark  43.     548. 
Barnes  v.  Barnes,  6  Vt.  388.     214. 
Barnes  v.  Burt,   38   Conn.  541.     634, 

639. 
Rarnett  v,  Lucas,  5  Jr.  C.  L.  140,  Ir. 

R.  6  C.  L.  247.     122,  443,  446,  555, 

638. 
Barrett  v.  Bell,  82  Mo.  110,  52  Am. 

Rep.    361.      464. 
Barrett  v.  Choen,  119  Ind.  56,  20  N. 

E.  145,  12  Am.  St.  Rep.  .363.     435. 
Harrington  v.  Justice,  4  Pa.  L.  J.  289. 

ISO. 


XVI 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Barrow,  Be,  98  Fed.  582.    369. 
Barry  v.  Barry,  1  Jac.  &  Walk.  653. 

591. 
Bartholomew  v.  Hamilton,  105  Mass. 

239.     420. 
Bartlott  V.  Brown,  6  E.  I.  37.     669, 

670. 
Bartlett   v.   Haviland,   92   Mich.   552, 

52  N.  W.  1008.     36,  481,  522. 
Bartlett  v.   Wood,   32   Vt.    372.     22, 

437,  441,  543. 
Bass  V.    Metropolitan   E.   E.   Co.,    82 

Fed.  857,  27  C.  C.  A.  147,  53  U. 

S.  App.  542,  39  L.  E.  A.  711.     533. 
Bass  Foundry  Wks.  v.  Gallentine,  99 

Ind.   525.     408,   409,   486. 
Batcheldor  v.  Yates,   38  Ch.  D.  112, 

57  L.  J.   Ch.  697.     399,   492. 
Bateheller  v.  Commercial  A.  Co.,  143 

Mass.  495,  10  N.  E.  321.     Ill,  117. 
Bateman  v.  Eaymond,   15  Mont.  439, 

39  Pae.  520.     422. 
Bates  V.  Johnson,  58  Hun  528,  12  N. 

Y.  Supp.  403,  126  N.  Y.  681,  28  N. 

E.  249.     533. 
Batterman    v.    Albright,    122    N.    Y. 

484,  25  N.  E.  856,  11  L.  E.  A.  800. 

65,  338,  348,  542. 
Bauernschinidt    Co.   v.    McColgan,    89 

Md.  135,  42  Atl.  907.     122,  255. 
Baum  V.  Covert,  62  Miss.  113.     429, 

430. 
Bawden  v.   Hunt,  123  Mich.   295,   82 

N.  W.  52.     397. 
Bayne  v.  Brewer  Pottery  Co.,  90  Fed. 

754.     21,  436. 
Beach  v.  Allen,  7  Hun  441.     70. 
Beall  V.  State,  68  Ga.  820.     669. 
Bean   v.  Brackett,   34  N.  Ham.   102. 

394,  397,  407,  411. 
Bean  v.  Toland,  1  Tex.  Ct.  App.  Civ., 

sec.   1022.     103. 
Bear  v.  Bitzer,  16  Pa.  St.  175.    341. 
Beard  v.  Duralde,  23  La.  Ann.  284. 

54,  63,  540. 


THE   BOTTOM    PAGES.] 

Beardsley  v.  Ontario  Bank,  31  Barb. 

619.     4,   21,  47,  50,  541. 
Beardsley   v.   Sherman,    1    Daly,    325. 

651. 
Beatty  v.  Brown,  76  Ala.  267.     633. 
Bcatty   V.   Brown,    141    Mass.    523,   6 

N.  E.  754.     431. 
Beaufort  v.  Bates,  31  L.  J.  Ch.  481, 

3  DeG.  F.  &    J.  381,  8  Jur.  N.  S. 

270,  10  W.  E.  200,   6  L.  T.  N.  S. 

82,   10   W.   E.   149,   5  L.   T.  N.   S. 

546.     21,  240,  241. 
Beaupre  v.  Dwyer,  43  Minn.  485,  45 

N.  W.  1094.     32. 
Beavan  v.  Delahy,  1  H.  Bl.  5.     550. 
Beck  V.  Denbigh,  8  C.  B.  N.  S.  888, 

6   Jur.   N.   S.   998,   29  L.  J.   C.   P. 

273,  8  W.  E.  392,  2  L.  T.  N.  S.  154. 

646,  647. 
Beck  V.  Eebow,  1  P.  Wms.  94.     196, 

285,   301,   308,   309,   447,   470,   475, 

476. 
Beck  V.  Zimmerman,   75   N.   Car.   60. 

639. 
Becker   v.    Witmer,    1     Pearson    524. 

72,  424. 
Beckman   v.   Sikes,   35   Kan.   120,   10 

Pac.   592.     348. 
Beekmann     v.     Bormann,     3     E.     D. 

Smith  409.     660. 
Beckwith  v.  Boyce,  9  Mo.  556.    161, 

199. 
Bedford  v.  Smith,  Dy.   108b.    605. 
Bedford   County   Case,   2   Luder   440. 

15,   586. 
Bedlow  v.  New  York  D.  Co.,  112  N. 

Y.   263,   19   N.  E.  800,   2  L.  E.  A. 

629.     146,  200. 
Bedlow   V.   Stillwell,   158  N.   Y.   292, 

53  N.  E.  26,  91  Hun  384,  36  N.  Y. 

Supp.   129.      297. 
Beech  G.  C.  Co.  v.  Mitchell,  193  Pa. 

St.   112,  44  Atl.   245.     252. 
Beeler   v.    C.    C.    Mercantile    Co.,    70 

Pac.  943,  60  L.  E.  A.  283.     67. 
Beers  v.   Saint  John,   16   Conn.   322. 

86,  153. 


TABLE  OF  CASES. 


XVll 


[BEFEREXCES    ARE    TO 

Begbie  v.  Fenwick,  L.  E.  8  Ch.  App. 

1075,  24  L.  T.  N.  S.  58,  25  L.  T. 

N.  S.  441.     403,  470,  493,  494,  497, 

499. 
Beland  v.  Laine,  4  C.  B,  Que.  354,  26 

Can.  419.     408,  486. 
Belcher,    Ex   parte,    2    Mont.    &   Ayr. 

166,  4  Dea.  &  Chit.  703,  4  L.  J.  N. 

S.  B.  29.     123,  399,  405,  406,  504, 

505. 
Belding    v.    Gushing,    67    Mass.    576. 

432. 
Bell  V.  Parks,  18  Kan.  152.     95. 
Bell  V.  State,  51  Tenn.  426.     667. 
Bell   V.    Swallwell   L.    Co.,    20   Wash. 

602,  56  Pac.  401.     384. 
Bellamy  v.  Davey   [1891],  3  Ch.  540, 

60  L.  J.  Ch.  778,  65  L.  T.  E.  308, 

40  W.   R.  118,    [1891]   W.*  N.  192, 

21,  508. 
Bellingham,    B.    &   B.    C.    E.    E.    Co. 

V.  Strand,   14  Wash.   144,  44   Pac. 

140,  46  Pac.   238.     90. 
Bellows  V.   Wells,   36   Vt.,   599.     367, 

372. 
Bell  T.  Co.,  Be,  37  Can.  L.  J.  851. 

562,  563. 
Bell  T.  Co.  V.  Ascot,  16  Que.  C.   S. 

436.     562. 
Bell    T.   Co.   V.   Winchester,    31    Can. 

L.  J.  667.     562. 
Belvin  v.  Ealeigh  P.  Co.,  123  N.  Car. 

138,  31  S.  E.  391.     138,   151,  409, 

413. 
Bemis  v.  First  Nat.  Bk.,  63  Ark.  625, 

40  S.  W.   127.     31,   392,  470. 

Bender   v.   King,    111    Fed.    60.      33, 
395,   437. 

Benedict    v.    Beebee,    11    John.    145. 
515. 

Benedict  v.  Benedict,  5  Day  464.   106, 
107,   113. 

Benedict   v.  Marsh,   127   Pa.   St.   309, 
18  Atl.  26.     35,  57. 

Benjamin   v.   Elmira,   &c.,   E.   R.   Co., 
54  N.  Y.  675.     51. 


THE   BOTTOM    PAGES.] 

Bennett  v.  Allen,  2  Clint.  Dig.  N.  Y. 

1416.      73,   387,   433. 
Bennett  v.  Bagley,   22  Hun  408.    68, 

399. 
Bennett  v.  Nichols,  12  Mich.  22.    617. 
Bentley,   Ex  parte,   2   M.   D.   &  DeG. 

591,  6  Jur.  719.     149,  461,  463,  473, 

504. 
Berger  v.  Hoerner,  36  111.  App.  360. 

28,   141,   142,   479. 
Berliner   v.    Piqua    Club,    66     N.     Y. 

Supp.  791,  32  Misc.  470.     26,  388, 

396,   448. 
Bermea  L.  Co.  v.  Adoue,  20  Tex.  Civ. 

App.  655,  50  S.  W.  131.     202,  223, 

407. 
Bernal  v.  Hovious,  17  Cal.  541.     372. 
Bernheimer  v.   Adams,   70   App.   Div. 

114,    75    N.    Y.    Supp.,    175    N.    Y. 

472,  67  N.  E.  1080.     136,  142,  143, 

144,   155,   256,   259,  413,   518. 
Berriman    v.    Peacock,    9    Bing.    384. 

333. 
Berry  v.  Heard,  Cro.  Car.  242,  Palm. 

327,    W.    Jones    255,    7     Term     11, 

Bend.  141.     75,  333,  634,  642,  654, 

655. 
Berry  v.  VanWinkle,  2  N.  J.  Eq.  269. 

524,  529,  530,  533. 
Best  V.   Hardy,   123   N.  Car.   226,   31 

S.  E.  391.     388,  390,  392,  411,  472. 
Best  V.   Stoneback,   39   Kan.   170,    17 

Pac.  821.     482. 
Betham  v.  Gregg,  10  Bing.  352.    294, 

357. 
Betts  V.  Lee,  5  John.  348.     82. 
Betz  V.  Muench,  13  Atl.  622.     72,  616, 

617. 
Bevans   v.   Briscoe,   4   Har.   &  John. 

139.     355,   363. 
Bewick   v.   Fletcher,  41   Mich.   625,   3 

N.  W.  162,  32  Am.  Eep.  170.    32, 

520. 
Bickmoro  v.  Dummer,  72  L.  J.  Ch.  96. 

11. 
Bidder  v.  Trinidad  Petroleum  Co.,  17 

W.  R.  153.     10,  140,  241,  242,  245. 


xvm 


TABLE  OF  CASES. 


[rkferences  ark  to 

Biddle  v.    McDonough,   15   Mo.   App. 

532.     529. 
Bidille  V.  Bamsej',   52  Mo.  153.    530. 
Bicnvenu's  Sue,  106  La.  595,  31  So. 

193.     415. 
Biggs  V.  Brown,  2  S.  &  R.   14.    354. 
Bigler  v.  National  Bk.  of  Newburgh, 

26  Hun  520,  14  N.  Y.  Wkly.  Dig. 

410.      392. 
Bigler  v.  New  Y.  C.  I.  Co.,  20  Barb. 

635.     463. 
Billings    V.    Billings,    1    Pennypacker 

145.     375. 
Bingham  Assn.  v.  Rogers,  7  Ida.  63, 

59  Pac.  931.    92. 
Binkley  v.  Forkner,  117  Ind.  176,  19 

N.  E.  753,  3  L.  R.  A.  33.     28,  104, 

420,  471,  486. 
Binney's  Case,  2  Bland  Ch.  146.    566. 
Birch  V.   Dawson,   6   C.   &  P.   658,   2 

Ad.  &  E.  37.     7,  245,  309,  447,  476. 
Bircher    v.    Parker,    40    Mo.    118,    43 

Mo.  443.     186,   194,   203,  207,  609. 
Birch-Wolfe   v.   Birch,    L,    R.    9    Eq. 

683.     608. 
Bird  V.   Bird,    15   Fla.   424.      340. 
Bird  V.  Relph,  4  B.  &  Ad.  826,  2  Ad. 

&  El.  773.     290,  293. 
Bishop  V.  Bishop,   11  N.  Y.  123,  62 

Am.  Dec.  68,  1  Kern.  126.    48,  51, 

455. 
Bishop  V.  Elliott,  11  Exch.  113,  1  Jur. 

N.  S.  962,  24  L.  J.  Exch.  229,  10 

Exch.   496,   24  L.  J.   Exth.   23.     9, 

46,    189,    248. 
Bishop    of    "Winchester   v.    Knight,    1 

P.  Wms.  403.     597. 
Bittenger   v.   Baker,    29   Pa.    St.   68. 

340,  344,  346,  347. 
Blache    v.    Aliex,    15    La.    Ann.    50. 

194. 
Black  V.  Black,  30  N.  J.  Eq.  215.   86. 
Black   V.   Hepburne,    2    Yeates     331. 

657. 
Blackburn    v.    Clark,    19    Ky.    L.    R. 

659,  41  S.  W.  430.     670. 
Blades  v.  Higgs,  11  H.  L.  Cas.  621, 


THE    BOTTOM    PAGES.] 

11  Jur.  N.  S.  701,  12  L.  T.  N.  S. 

615.     328,  329. 
Blagrave's    Set.    Est.,    Re    [1903],    1 

Ch.  560,  72  L.  J.  Ch.  317,  88  L.  T. 

R.   253,   51  W.  R.  437.     11. 
Blair    v.    Murphree,    81    Ala.    454,    2 

So.   18.     352. 
Blair  v.  Worley,  1  Scam.  178.    92,  93. 
Blake  v.  Clarke,  6  Me.  436.     397. 
Blanchard  v.  Bowers,  67  Vt.  403,  31 

Atl.   848.     106. 
Blancke  v.  Rogers,  26  N.  J.  Eq.  563. 

21,  29,  439,  441,  460. 
Blethen  v.  Towle,  40  Me.  310.     449, 

450,   456. 
Blewitt   V.    Tregonning,    3   Ad.   &   E. 

554.     82. 
Bliss  V.  Misner,  4  N.  Y.  633,  2  Hun 

391.     46,  64,  70. 
Bliss  V.  Whitney,  9  Allen  114,  85  Am. 

Dec.  745.     122,  141,  199. 
BUtch  V.  Lee,  115  Ga.  112,  41  S.  E. 

275.      342. 
Blodgett  V.  German  Sav.  Bk.,  69  Ind. 

153.     340,  343. 
Bloemendal    v.    Albrecht,     79     Minn. 

304,  82  N.  W.  585.     361. 
Bloom    V.    Welsh,    27    N.   J.   L.    177. 

341,   342. 
Bloomfield  v.  Hellyer,   22   Ont.  App. 

232.      348. 
Bludworth    v.    Hunter,    9     Rob.     256. 

339. 
Board  of  Ed.  v.  Grant,  118  Cal.  39, 

50  Pac.  5.     195. 
Board   of    Ed.   v.   State,   64  Kan.   6, 

67  Pac.  559.     397. 
Bogey  V.  Shute,  4  Jones  Eq.  174.  603. 
Bohl  V.  Brown,  2  Tex.  Ct.  App.,  Civ. 

485.     195. 
Bohn  V.  Hatch,  133  N.  Y.  64,  30  N. 

E.  659.     255. 
Boileau  v.  Heath   [1898],  2  Ch.  301, 

67  L.  J.  Ch.  529,  78  L.  T.  R.  622, 

46  W.  R.  602.     82. 
Boisaubin    v.    Reed,    2     Keyes     323. 

373. 


TABLE  OF  CASES. 


xrx 


[REFERENCES    ARE    TO 

Bolland  v.   O'Neal,   81   Minn.   15,   S3 

N.   W.   471.     376. 
Boiling  V.  Whittle,  Ala.  Sel.  Ca.  268. 

86. 
Bolton  V.  MeShane,  67  la.  207,  25  N. 

W.    135.     602. 
Bond  V.   Coke,   71   N.   Car.   97.      391, 

444,   516. 
Bonham  v.   State,  65  Ala.   456.    668. 
Bonebrake  v.  Summers,  8  Pa.  Super. 

55.      13. 
Bonnell   v.  Allen,  53  Ind.   130.     180, 

608,  613. 
Bonner  v.  Wiggins,  52  Tex.  125.    87. 
Bonney  v.  Foss,  62  Me.  248.     87,  144, 

198. 
Bonson  v.  Jones,  89  Iowa  380,  56  N. 

W.  515.     87,  103. 
Boon   V.   Cornforth,   2   Ves.   Sr.,    277. 

322. 
Boon  V.  Orr,  4  G.  Greene  304.     38. 
Booraem  v.  Wood,  27  N.  J.  Eq.  371. 

89,  410. 
Booth    V.    Kapuakela,    10    Haw.    414. 

102,  522. 
Booth    V.    Oliver,    67    Mich.    664,    35 

N.  W.  793.     216,  501. 
Borland  v.  Hahn,  25  N.  Y.  Supp.  131, 

53  N.  Y.  St.  R.,  887.     109,  400. 
Boston,  C.  &  M,  E.  R.  v.  Gilmore,  37 

N.  H.  410.     50,  541. 
Boston  F.   Co.  v.  Dimock,   158   Mass. 

552,  33  N.  E.  647.     429. 
Boston  Tr.  Co.  v.  Bankers'  T.  Co.,  36 

Fed.  288.     104,  417. 
Bostwiek  v.  Leach,  3  Day  476.     514. 
Bourne  v.  Beck,  22  Ky.  L.  R.  792,  58 

S.  W.  690.     605, 

Bours  V.  Webster,  6  Calif.  660.     372. 

Bovet  V.  TTnlzgraft,  5  Tex.  Civ.  App. 
141,  23  S.  W.  1014.     146. 

Bowen  v.  Roach,  78  Ind.  361.     343. 

Bowon    V.   Wood,   35    Ind.    268.      389, 
390,  392,  406. 

Bowers    v.    Bowers,    95    Pa.    St.    477. 
373. 


THE   BOTTOM    PAGES.] 

Bowles's    Case,    11    Col.,    81    b.      75, 

268,  458,  633,  635,  644. 
Bowman  v.  Conn,  8  Ind.  58.     371. 
Bowman   v.   Milbanke,   Sir   T.   Eaym. 

97.     678. 
Boyd  V.  Douglas,  72  Vt.  449,  48  Atl." 

638.     243. 
Boyd  V.  Shorrock,  L.  R.  5  Eq.  72,  37 

L.  J.  Ch.  144,  17  L.  T.  N.  S.  197, 

16  W.  E.  102,  20  L.  T.  N.  S.  1012. 

45,  122,  443,  461,  492,  497. 
Boyd    V.    Wilson,    18    Rev.    Leg.    65. 

142. 
Boydell  v.  McMichael,  3  Tyrwh.  974, 

1  Cr.  M.  &  R.  177,   3  L.  J.  N.  S. 

Ex.    264.      75,    123,    504,   506,    512, 

544,  635,  643,  644. 
Boyer  v.  Williams,  5  Mo.  335.     99. 
Boyle  V.   Swanson,    6   La.   Ann.    263. 

34,   72,  403. 
Bracelin  v.  McLaren,  59  Mich.  327,  26 

N.  W.  533.     386,  522. 
Brackett    v.    Goddard,    54    Me.    309. 

332. 
Bradley  v.  Bailey,  56   Conn.   374,  15 

Atl.  746,  1  L.  R.  A.  427,  7  Am.  St. 

R.  316.     356. 
Bradley    v.    Merrill,   91    Me.    340,    40 

Atl.   132.     422. 
Bradley  v.  Ritchie,  12  Pa.  Dist.  658. 

25,  36,  56,  110,  539. 
Bradley   v.   Faulkner,   34   N.   Y.   347. 

350. 

Brady  v.  Waldron,  2  Kohn.  Ch.  148. 
612. 

Bramble  v.   Kingsbury,   39  Ark.   131. 

518. 
Branch  v.   Morrison,  5  Jones'  L.   16, 

6  Jones'  L.  16.     333,  628,  646. 

Branch  T.  Co.  v.  Yuba  Co.,  13  Calif. 
190.     602. 

Brand  v.  Brand,  5  Sess.  Cas.  4th  Ser. 
607,  15  Scot.  Law  Rep.  330,  3  Sess. 
Cas.  4th  Ser.  11.  L.  16,  13  Scot  Law 
Rep.  744,  1  App.  Cas.  762,  18  Eng. 
Repts.    44,    2    Sess.    Cas.    4th    Ser. 


XX 


TABLE  OF  CASES. 


[KEFERENCES    ARE   TO 

258,  12  Scot.  Law  Sep.  124.    6,  38, 

297. 
Brand  v.   McMahou,   15  N.  Y.  Supp. 

39,  38  N.  Y.  St.  K.  576.     414. 
Braudser  v.   Mjageto,   79   jMinn.   457, 

82  N.  W.  860.     92. 
Brannon   v.  Vaughn,   66   Ark.   87,   48 

S.  W.  909.     19,  111,  383. 
Brantford  P.  Co.,  Ke.,  28  Out.  40,  24 

Ont.  App.  301.     526. 
Branton  v.  Griffits,  L.  R.  1  C.  P.  D. 

349,  45  L.  J.  Ch.  C.  P.  588,   2   C. 

P.  D.  212,  46  L.  J.  Q.  B.  408,  20 

Eng.  Eepts.  475.     366,  492. 
Bratton  v.  Clawson,  2  Strobh.  L.  478, 

3  Strobh.  L.  127.     55,  65,  444,  486. 
Bream    v.    Dickerson,    21    Tenn.    126. 

533. 
Brearley  v.  Cox,  24  N.  J.  L.  287.     2, 

31,  61,  621. 
Breese  v.  Bange,  2  E.  D.  Smith  474. 

403. 
Brennan  v.  Whitaker,  15  O.  St.  446. 

35,  147,  387,  433,  486,  487. 
Bresler  v.  Darmstaetter,  57  Mich.  311, 

23  N.  W.  825.     532. 
Brett  V.  Brett,   2   Madd.   62.     608. 
Bricker  v.  Hughes,  4  Ind.  146.     365, 

370. 
Bridgeman's    Case,    1    Roll.    R.    216. 

190,  196. 
Bridges    v.    Thomas,    8    Ok.    620,    58 

Pac.  955.     36,  620,  622. 
Bridgewater   v.    Egerton,    2    Ves.    Sr. 

121,  3  Ves.  Sr.  Sup.  296.     322. 
Briggs  V.  Chicago  K.  &  W.  R.  Co.,  56 

Kan,  526,  43  Pac.  1131.  89,  411. 
Bright  V.  Boyd,  1  Story  478.  80. 
Brinckerhoff    v.    Starkins,    11    Barb. 

248.      329. 
Bringholff  v.   Munzenmaier,   20   Iowa 

513.     486,  487. 
Brinkmeyer  v.  Rankin,  22  Ky.  L.  R. 

1881,  61  S.  W.  1007.     216. 
Bristol  V.  Burt,  7  John.  254.     646. 
Brittain   v.    McKay,   1   Ired.   L.   265. 

364,  369. 


THE   BOTTOM    PAGES.] 

British    A.    A.    Co,    v.    Bradford,    60 

Kan,  82,  55  Pac,  335,     379. 
British  &  Am.  Mort.  Co.  v.  Scott,  70 

Ark.  230,  65  S.  W.  936.    35. 
Broaddus    v.    Smith,    121    Ala.    335, 

26    So.    34,    77    Am.    St.    Rep.    61. 

201,  216,  219,  413,  546,  649. 
Broadwood,  Ex  parte,  1  Mont,  Dea.  & 

DeG,   631.     405,  406,   504,   505. 
Brock  V.  Leighton,   11   111.  App,  361. 

343,  348,  349. 
Brock   V.   Smith,    14   Ark.   431.      435. 
Brodrick  v.   Kilpatrick,  82  Fed.   138. 

478. 
Brook,   Ex  parte,   10   Ch.   D,   100,  48 

L.  J.  Bankr,   22,  47  L,  S,  B.  101, 

39  L,   T.   R.   58,   38  L.   T.  R.   888, 

14    Co,    Ct.    &   B.    27,    20   Eng.    R. 

543,  27  W.  E.  255.     198,  206,  207. 
Brooke,  Re   (1894),  2  Ch.  600,  64  L. 

S.  Ch,  21,  71  L.  T.  R,  398,  8  R,  444. 

493. 
Brooklyn  v.  Smith,  104  111,  429,     83. 
Brooks  V.  Brooks,  12  S.  C.  422.     274, 

355,  524. 
Brooks  V.  Galster,  51  Barb.  196.     162, 

199. 
Brooks  V.  Hiatt,  13  Neb,  503,  14  N. 

W.  480.     95. 
Brooks    V,    Prescott,    114    Mass.    392. 

36,   407,   420,   479. 
Brooks    V,    Whelock,    11    Pick.    439. 

386. 
Brookville  Co.  v.  Butler,  91  Ind.  134, 

83. 
Brothers  v.  Hurdle,  10  Ired,  L.  490. 

361,  628,  646. 
Brown,  Ex  parte,  9  Ch.  D.  389.     494. 
Brown  v.  Baldwin,   m   Mo.   126,   25 

S.  W,  863.     1,  22,  116. 
Brown  v.  Blunden,  Skin.  121.     234. 
Brown  v.  Bridges,  31  Iowa  145.    103, 

592. 
Brown   v.   Brookfield,    24    N.    S.    476. 

71,  643. 
Brown   v,   Caldwell,   10  S.   &   R.   114. 

626. 


TABLE  OF  CASES. 


XXI 


[REFEllENCES    ARE   TO 

Brown  v.  Coats,  56  Ala.  439.     367. 
Brown  v.  Corbin,  121  Ind.  455,  23  N. 

E.  276,     104,  117. 
Brown  v.  Crump,  1  Marsh.  567.     180, 

182. 
Brown  v.  Dodge,  32  Me.  167.     376. 
B^o^vll  v.  Fox,  33  N.  Y.  Supp.  57,  12 

Misc.  147,  66  N.  Y.  St.  R.  714.     68, 

394. 
Brown  v.  Galagher,  5  O.  Dec.  556,  7 

Ohio  N,  P.  666.     525. 
Brown  v.  Granville,  10  Bing.  69.    577, 

582. 
Brown  v.   Herroitt,   1   Kyshe   43.     4, 

165,  396. 
Brown  v.   Leath,    17   Tex.   Civ.  App.. 

262,   42   S.   W.   655,   44   S.   W.   42. 

346. 
Brown    v.    Lilie,    6    Nev.    244.       21, 

433. 
Brown  v.  :\Iagorty,  156  Mass.  209,  30 

N.  E.  1021.     662. 
Brown   v.   Reno   Power   Co.,   55  Fed. 

228.     26,  32,  143,  151,  205,   234. 
Brown  v.   Roland,   92   Tex.   54,   45  S. 

W.  795,  11  Tex.  Civ.  App.  648,  33 

S.  W.  273.    441,  479,  482,  486,  515, 

516. 
Brown  v.  Sage,  11  Gr.  Ch.  239.     72, 

480,  613. 
Brown  v.  Stewart,  1  Md.  Ch.  87.    609. 
Brown   v.   Thurston,   56   Me.    126,   96 

Am.  Dec.  440.     340. 
Brown   v.   Turner,    60    Mo.    21.      365. 
Brown  v.  Wallis,  115  Mass.  156.    625. 
Brown  v.  Ward,   119   la.   604,   93   N. 

W.  587.     236. 
Browncker    v.    Bagot,    19    Ves.    574. 

322. 
Browne  v.  Davis,   109   N.  C.   265,   13 

S.  E.  703.     407. 
Browne  v.  Ransdcn,   8   Taunt.  559,   2 

B.  Moore  612.     292, 
Brownell  v.   Fuller,   60   Neb.   558,   83 

N.   W.  669.     29,  37,  57,   146. 
Bruce,  Re.,  9  Benedict  236,  Fed.  Cas. 

No.  2045.     71, 


THE   BOTTOM    PAGES.] 

Bruce  v]  Welch,  52  Hun  524,  5  N.  Y. 

Supp,  668.     666. 
Brugere  v.  Slidell,  27  La.  A.  70.    524. 
Brugger  v.  State  I.  Co.,  5  Sawy.  304, 

Fed.  Cas.  No.  2051,  7  Rep.  616,  8 

Ins.  L.  J.  293.     379,  463. 
Brule  v.  Dostaler,  26  Rap.  Jud.  Rev. 

619.     457. 
Bruley  v.  Garvin,  105  Wis.  625,  81  N. 

W.  1038.     375. 
Brummet  v.  Campbell,  32  Wash,  358, 

73  Pac.  403.     532. 
Bryan  v.   Lawrence,   5  Jones  L.   337. 

26,  389,  453. 
Bryant  v.  Crosby,  40  Me.  21.     370. 
Bryson  v.  Wylie,  1  B.  &  P.  83.     507, 

512. 
Bubb  V.  Yelverton,  L.  R.  10  Eq.  465, 

595, 
Buchanan   v.   Cole,   57   Mo,   App.   11. 

426. 
Buck  V.  Pickwell,  27  Vt.  157.     374. 
Buckhurst's  Case,    1   Co.   1   Mo,   488. 

315,  317, 
Buckingham  v.  Pembroke,  3  Keb.  74. 

650. 
Buckland    v.    Butterfield,    2    Brod.    & 

B.  54,  4  Moore  4-10,     164,  186,  188, 

189,    190. 
Buckley  v.  Buckley,  11  Barb.  43.    312, 

313. 
Buckout   V.   Swift,   27   Calif.   433,   87 

Am.  Dec.  90.     63,  74,  458,  611. 
Buck's    App.,     2     Pennypackor     327. 

393. 
Budd  V.  Ililer,  27  N.  J.  L.  43.     350, 

351. 
Budden  v.  Knight,  3  Que.  L.  R.  273. 

65,  486,  542. 
Buffalo,  Re,  1  N.  Y.  St.  R.  742.     152, 

217. 
Bulkley    v.    Dolbeare,    7    Conn.    232. 

70,   75,  633. 
Bull   v.   Griswold,    19    III.    631.      339, 

370, 
Bull  V.  .Tones,  9  Tex,  Civ,  App,  346, 

523,  622,  624, 


xxu 


TABLE  OF  CASES. 


[references  are  to 

Bullock  V.   Grinstcd,   05   Ky.   2(51,    15 

Ky.  L.  R.  663,  24  S.  W.  867.     533. 

Bulwer  v.  Buhver,   2  B.  &  Aid.  470. 

'29-2,  294,  357,  359. 
Bunker  v.  Locke,   15  Wis.  635.     609. 
Bunnell   v.   Tupper,    10   U.    C.   Q.   B. 

414,  33,  37,  647. 
Burbank    v.    Boanl    of   Assessors,    52 

La.  A.  1506,  27  So.  947.     558. 
Burdick  v.  Chesebrough,  94  App.  Div. 
532,    88    N.    Y.    Supp.    13,    7    Law 
Notes  160.     83,  473. 
Burk  V.  Baxter,  3  Mo.  207.     538. 
Burk  V.  Hollis,  98  Mass.  55.     66,  67, 

110,  199,  218. 
Burke  v.  Taylor,  46  U.  C.  Q.  B.  371, 
18  Can.  L.  S.  10,  2  Can.  L.  T.  35. 
392. 
Burke  v.  Weiss,  1  Luz.  Leg.  Eeg.  E. 

310.     436,  450. 
Burkhardt    v.    Hopple,    6    Ohio    Dec. 
127,    5    Ohio    N.    P.    388.      29,    56, 
144,  148,  412. 
Burleigh  v.  Ford,  59  N.  H.  536.     104, 

640. 
Burleigh   v.    Piper,    51    Iowa    649,    2 

N.  W.  520.     364. 
Burleson  v.  Teeple,  2  G.  Greene  542. 

38,  92,  454. 
Burley  v.  Pike,  62  N.  H.  495.     619, 

630. 
Burnett   v.   Lynch,    5   Bl.    &   C.    603. 

598. 
Burns   v,    Fleming,    8    Sess.    Ca.    4th 

Ser.  226.     164,  197,  333. 
Bums  V.   School  Dist.,   61   Neb.   351, 

85  N.  W.  284.    89,  112,  421. 
Bumside  v.   Marcus,   17  U.  C.  C.   P. 

430.     33,  37,  112. 
Bumside  v.  Twitchell,  43  N.  H.  390. 
27,  46,  54,  378,  406,  411,  455,  643. 
Bumside   v.   Weightman,    2   W.   &   S. 

268,  9  Watts  46.     340. 
Burrell  v.  Davis,  15  Jur.  155.     248. 
Burrill    v.    Wilcox    L.    Co.,    65    Mich. 

571,  32  N.  W.  824.     383,  434. 
Burton  v.  Brown,  Cro.  Jac.  648.     403. 


THE   BOTTOM    PAGES.] 

Busby   V.   Joseph,   7   N.   S.   W.   Supr. 

Ct.    200.      223,    227,    241, 
Bute  V.   Griiidall,   1   Term   343.     567. 
I  Sutler  V.  Adler-Goldman  Co.,  62  Ark. 

445,  35  S.  W.  1110.     483. 
Butler   V.   Colwell,   89   111.   App.    133. 

144,  217,  231. 
Butler  V.  Cozens,  6  Vin.  Abr.  357,  11 

Mod.  198.     21. 
Butler  V.   Page,   7   Met.  40,   39  Am. 

Dec.  757.     393,  411. 
Butman   v.   Jones,   34   Minn.   547,   27 

N.  W.  66.     603. 
Buxton  V.  Bedell,   3  East.  303.     517. 
Buzzell  V.  Cummings,  61  Vt.  213,  18 

Atl.  93.     417. 
Byassee  v.  Reese,  34  Met.  372,  83  Am. 

Dec.  481.     366,  373,  376. 
Byrnes  v.  Macarthur,  2  N.  S.  W.  L. 

E.  57.     9,  140,  141,  142,  525. 
Byrnes  v.  Palmer,  113  Mich.  350,  71 

N.  W.  331.     35,  58. 
Byrom  v.  Chapin,  113  Mass.  308.   594. 
Cable  V.  Ellis,  120  111.  136,  11  N.  E. 

188.     406. 
Cadogan  v.  Kennet,  Cowp.  432.     322.  , 
Cady  V.  Sanford,  53  Vt.  632.     375. 
Cady  Lumb.  Co.  v.  Greater  Am.  Expo. 

Co.,  93  N.  W.  961.     426. 
Cahn    V.    Hewsey,    29    N.    Y.    Supp. 
1107,    31    Abb.    New    Cas.    387,    8 
Misc.    384,    59    N.    Y.    St.    R.    868. 
467,  610. 
Cain    V.    McGuire,    13    B.    Mon.    340. 

373. 
Cain   V.   Tex.   L.   Assn.,   21   Tex.   Civ. 

App.  61,  51  S.  W.  879.     425. 
Caldecott  v.  Brown,  2  Hare  144.     523. 
Caldecott    v.    Smythies,    7    C.    &    P. 

808.     353,  354. 
Caldwell  v.  Custard,  7  Kan.  303.     361, 

626. 
Caldwell  v.  Jacob,   16  Ky.  L.  R.   21, 

22  S.  W.  436,  27  S.  W.  86.     524. 
Calgary  v.   Calgary  G.   Co.,   2  N.   W. 
Ter.    86,    165,    16   Can.   L.   T.    235. 
560. 


TABLE  OF  CASES. 


XXlll 


[references  are  to 

Calgary  G.  Co.,  Ee,  16  Can.  L.  T.  235, 

2  N.  W.  Ter.  86.     560. 
Calgary   W.    Co.,   Be,    31    Can.   L.   J. 

310.     560. 
Calhoun  v.  Curtis,  45  Mass.  413.     340. 
California    Pac.    E.    R.    Co.    v.    Arm- 
strong,  46   Calif.   85,   1   Cent.  Law 

J.  452.     89,  117. 
California   S.   E.   R.   Co.  v.   Southern 

P.  E.  E.  Co.,  67  Calif.  59,  7  Pac. 

123.      89. 
Calumet  Iron  Co.  v.  Lathrop,  36  111. 

App.  249.     28,  60,   393. 
Calumet    E.    Ey.    Co.    v.    Brown,    136 

111.  322,  26  N.  E.  501.    89. 
Calvert,  Ee,   (1898)   2  I.  E.  501.     22, 

406,  492. 
Calvin  v.  Shimer,  15  Atl.  255.     346. 
Cameron  v.  Gibson,  17  Ont.  233.     340, 

366. 
Cameron  v.   Hunter,   34   U.   C.   Q.   B. 

121.     394. 
Cameron   v.   Tarratt,   1   U.   C.   Q.   B. 

312.     404,   484,   661. 
Camp    v.   Bates,    11    Conn.    51.      610, 

612,  613. 
Camp    V.   Charles    Thatcher    Co.,     75 

Conn.    165,   52   Atl.   953.      31,   487, 

624. 
Campbell    v.    Arnold,    1    John.    511. 

631. 
Campbell    v.    Coonradt,    26   Kan.    67. 

602. 
Campbell  v.  John  W.  Taylor  Co.,  62 

N.   J.   Eq.   307,   64   N.   J.    Eq.   344. 

11,   425,   426,   442. 
Campbell   v.  O'Xeill,  64  Pa.  St.  290. 

36,  147,  652. 
Campbell  v.  Eoddy,  44  N.  J.  Eq.  244, 

14  Atl.   279,   6   Am.   St.   Rep.   889. 

420. 
Campbell  v.   Taylor  Mfg.  Co.,  64  N. 

J.   Eq.   344,  59  Atl.   723,  62  N.  J. 

Eq.  307,  49  Atl.  1119.  427. 
Canada,  The,  7  Fed.  248.  74. 
Canada  L.  Co.  v.  Traders  Bk.,  29 

Ont.  479.  462. 


THE   BOTTOM    PAGES.] 

Canada  Sav.  Soe.  v.  Merchants '  Bk.,  3 

Man.  285.     60,  434,  543. 
Canadian  P.   E.   T.  Co.,   Re,   34   Can. 

L.  J.  789.    562. 
Canning   v.    Owen,    22    R.    I.    624,    48 

Atl.    1033,    84   Am.    St.    Eep.    858. 

61,  433,  449. 
Cannon  v.  Barry,  59  Miss.  289.     265, 

606. 
Caunon   v.   Hare,    1    Tenn.   Ch.   22,    1 

So.   Law   Eev.    240.      31,    138,   148, 

153,  157,  174,  192,  263,  274,  283. 
Capehart  v.  Foster,  61  mnn.  132,  63 

N.  W.  257,  52  Am.  St.  R.  582.     35, 

390,  396,  448. 

Capen  v.  Peckham,  35  Conn.  88,  9 
Am.  L.   Reg.   136.     21,   23,   31,  60, 

391,  442. 

Caperton  v,  Stege,  91  Ky.  351,  21  Ky. 

L.  R.  947,  15  S.  W.  870,  16  S.  W. 

84.     202,  224. 
Capital   Cy.   G.   Co.   v.   Charter   O.   L 

Co.,    51    Iowa   31,   50    N.   W.   579. 

559,  560. 
Capner   v.   Fleming   M.   Co.,   3   N.   J. 

Eq.  467.     609. 
Caraher  v.  Royal  I.  Co.,  63  Hun  82, 

17  N.  Y.  Supp.  858,  44  N.  Y.  St. 

R.  141.     379,  437. 
Cardiff  Corp.  Bill,  1  Rick.  &  S.  324. 

104. 
Cardvvell    v.   Atwater,    15   Ky.   L.    R. 

570.     373. 
Carkin  v.  Babbitt,  58  N.  H.  579.     53. 
Carkins    v.    Anderson,    21    Neb.    364. 

95. 

Carlin  v.  Goruy,  32  La.  A.  1285.     484. 

Carlin  v.  Ritter,  68  Md.  478,  16  Atl. 
301,  6  Am.  St.  R.  467.  18,  141, 
143,  197,  255. 

Carlisle  v.  Killebrew,  89  Ala.  329,  6 
So.  756,  6  L.  R.  A.  617.     361,  658. 

Carlisle  v.  Pullman  P.  C.  Co.,  8  Colo. 
320,  7  Pac  164.    566. 

Carlisle  v.  Stevenson,  3  Md.  Ch.  499. 
602. 


XXIV 


TABLE  OF  CASES. 


[KEFEUENCES    AUH    TO 

Carman  v.  ]Mosior,  105  Iowa  367,  75 

N.  W.  323.     357. 
Carney  v.   Mosher,   97   Mich.   554,   56 

N.  W.  935.     359,  371. 
Carpenter    v.    Allen,    150    Mass.    281, 

22  N.  E.  900.     420. 
Carpenter  v.  Jones,  63  111.  517.     340, 

359. 
Carpenter  v.  Lewis,  6  Ala.  682.     434. 
Carpenter  v.  Ottley,  2  Lans.  451.    341. 
Carpenter  v.  Pocasset  Mfg.  Co.,  180 

Mass.  130,  61  N.  E.  816.     534. 
Carpenter  v.  Walker,   140  Mass.  416, 
5  N.  E.   160,   1   N.   E.   R.   586,   32 
Alb.  Law  J.  318,  22  Cent.  Law  J. 
404.     441. 
Carper  v.  Eisdon,  76  Pae.  744.     211, 

223,  518,  652. 
Carr  v.  Burdiss,  5  Tyr.  309.     653. 
Carr  v.  Ellison,  20  Wend.  178.    532. 
Carr  v.  Erroll,  14  Ves.  478.     322. 
Carr  v.  Fire  A.   Assn.,   14   Ont.   487. 

71,  379,  388,  390,  392. 
Carr    v.    Georgia    E.    R.,    74    Ga.    73, 
18   Eep.   489.      151,   199,   208,   299, 
383. 
Carro  v.  Tucker,  2  Tex.  Ct.  of  App. 

Civ.  399.     396. 
Carroll  v.  McCullough,  63  N.  H.  95. 

486. 
Carroll  v,  Newton,  17  How.  Pr.  189. 

182. 
Carroll   v.   Shooting   the    Chutes    Co., 

85  Mo.  App.  563.    431. 
Carscallen  v.  Moodie,  15  TJ.  C.  Q.  B. 

304.     436,  442,  543. 
Carson    v.    Browder,    70    Tenn.    701. 

366,  372. 
Carson  v.  Simpson,  25  Ont.  385.     58, 

68,  522,  540. 
Carter   v.   Pratt,   23   Kan.   613.     619. 
Carter   v.    Tyler   County,    45   W.    Va. 

806,  32  S.  E.  216.     561. 
Carterville  v.  Lyon,  69  Ga.  577.     633. 
Cartwright  v.  Savage,  5  Ore.  397.   345. 
Cartwright  v.  Wideman,  9  Haw.  685. 
555. 


THE   BOTTOM    I'AGES.] 

Carver  v.  Gough,  153  Pa.  St.  225,  25 

Atl.    1124.     136,   170,   195,   236. 

Carver  v.  Pierce,  Sty.  66.     179,  305. 

Gary    Hardware   Co.   v.    McCarty,    10 

Colo.  App.   200,  50  Pae.  744.     26, 

427. 

Case    v.    Arnett,    26    N.    J.    Eq.    459. 

425,  442. 
Case   V.   L'Oeble,    84   Fed.    582.     33, 

442,  483. 
Case  Mfg.  Co.  v.  Garven,  45  Ohio  St. 

289,  13  N.  E.  493,  14  Wkly.  Gin.  L. 

Bui.    175.      60,    62,    388,    392,    442, 

484,  485,  486,  488. 
Case  of  the  Swans,  7  Co.  17  b.     327, 

328. 
Cassell    V.    Ashley,    92    N.    W.    1035. 

346. 
Cassell  V.  Collins,  23  Ala.  676.     515. 
Cassell  V.   Crothers,   193  Pa.  St.  359, 

44  Atl.  446.     213,  659. 
Cassiano   v.   Ursuline  Acad.,   64   Tex. 

673.     398. 
Cassilly   v.    Rhodes,    12    O.    88.      343, 

346. 
Castleberry   v.    Atlanta,    74   Ga.    164. 

99. 
Casto    v.    Kintzel,    27    W.    Va.    760. 

524. 
Catterlin  v.  Armstrong,  101  Ind.  514, 

79  Ind.  514.     407,  409,  412. 
Causey   v.    Empire    Mills,    119    N.    C. 

180,  25  S.  E.  863.     29. 
Cave  V.  Cave,  2  Vern.  508,  1  Eq.  Ca. 

Ab.  275.     285,  309. 
Cavis  V.  Beckford,  62  N.  H.  229,  13 

Am.  St.  R.  554.    388,  444. 
Cayuga  R'y  Co.  v.  Niles,  13  Hun  170, 

6  N.  Y.  Wkly.  Dig.  307.     112. 
Center   v.    Everard,    43    N.    Y.   Supp. 

416,  19  Misc.  156.     225,  246. 
Central    Br.    R.    R.    Co.   v.    Fritz,    20 

Kan.   430,   27   Am.   Rep.    175.      19, 

22,   28,   60,   70,   81,   381,    383,   618, 

620. 
Central  T.  Co.  v.  Arctic  I.  Co.,  77  Md, 

202,  26  Atl.  493.     480. 


TABLE  OF  CASES. 


XXV 


[referexces  are  to  the  bottom  pages.] 


Central    Trust    Co.    v.    Cameron   Iron 

Co.,  21  Pitts.  Leg.  J.  377.     26. 
Central   Tr.    Co.   v.    Cincinnati   Hotel 

Co.,   26   Wkly.  Law  Bui.   149.      29, 

453. 
Central  Tr.  Co.  v.   Moran.,   56  Minn. 

188,  57  N.  W.  471.     48. 
Central  Tr.  Co.  v.  Sheffield  Coal  Ey. 

Co.,   42   Fed.   106,   9   L.   K.   A.   67. 

48,  430. 
Chafifee  v.   Fish,   2   Ohio   Dec.   89,   1 

Ohio  N.  P.  211.     29,  259. 
Chalifoux  v.  Potter,  113  Ala.  215,  21 

So.  322.     216,  652. 
Chalmers,  11  Sess.  Ca.  3rd  Ser.  983. 

577. 
Chamberlain,  Ee,  140  N.  Y.  390,  35 

N.  E.  602.     334, 
Chamberlain    v.    McCarthy,    59    Hun 

158,  13  N.  Y.  Supp.  217.     208. 
Chamberlayne  v.  Collins,  9  Eepts.  311. 

12. 
Champ  S.  Co.  v.  B.  Eoth  T.  Co.,  103 

^ilo.  App.  103,  77  S.  W.  344.     255. 
Chandler  v.  Hamell,  57  App.  Div.  305, 

67  N.  Y.  S.  1068.     382. 
Chandler  v.  Oldham,  55  Mo.  App.  139. 

533. 
Chandler  v.   Thurston,  10  Pick.   205. 

359. 
Channon   v.    Patch,    5    B.    &    C.    897. 

333,  636. 
Chanter    v.    Dickenson,    5    M.    &    G. 

253,  6  Scott  N.  R.  182.    517. 
Chapin  v.  Persse  &  B.  Wks.,  30  Conn. 

461.     426. 
Chapman  v.  Long,  10  Ind.  465.     340. 
Chapman  v.  Union  M.  L.   Ins.  Co.,  4 

111.    App.    29,    10    Cent.    L.    .L    90. 

28,  32,  38,  437,  449,  450. 
Chapman   v.   Veach,   32    Kan.   167,   4 

Pac.  100.     340,  341. 
Chappell   V.  Boyd,   .56  Ga.   578.     336, 

352. 
Charles  v.  Davis,  59  Cal.  470.     3.50. 
Charleston  &  W.  C.  Ey.  Co.  v.  Hughes^ 

105  Ga.  1,  30  S.  E.  072.     265. 


Charleston  L.  Co.  v.  Brockmyer,  18  W. 

Va.  586.     408. 
Charleston  Ey.  Co.  v.  Hughes,  105  Ga. 

1.     89,  284. 
Charlotte  F.  Co.  v.  Stouffer,  127  Pa. 

St.  336,  17  Atl.  994.    224. 
Chase  v.  Hazelton,  7  N.  H.  171.    592. 
Chase  v.  New  York  I.   Wire  Co.,   57 

111.  App.  205.     143,  154. 
Chase  v.  Tacoma  Box  Co.,  11  Wash. 

377,  39  Pac.  639.     30,  441, 
Chase  v.  Wingate,  68  Me.  204,  28  Am. 

Eep.  36,  6  Eep.  749,  18  Alb.  Law  J. 

357,     32,  399,  412,  459,  460,  642. 
Chase    County   v.    Shipman,    14   Kan. 

532.     558. 
Chatham  County  v.  Seaboard  Air  Line 

E.  Co.,  133  N,  C.  216,  45  S,  E.  566. 

563, 
Chatterton  v,   Saul,   16  111.   149.     95, 

102,  622. 
Cheatham  v.  Plinke,  1  Tenn.  Ch.  576. 

212,  217,  230. 
Chellis    V.    Stearns,    22    N.    H.    312. 

630. 
Cherry    v.    Arthur,   5   Wash.    787,    32 

Pac.  744.     30,  441,  442. 
Chesebrough  v.  Pingree,  72  Mich.  438, 

40  N.  W,  747.     398. 
Cheshire   v.    Shutesbury,    7   Met.   566. 

397. 
Chevalier  v.  Beauchemin,  17  Eev.  Leg. 

642.     417. 
Chicago  &  A.  E.  E.  Co.  v.  Goodwin, 

111  111.  273,  53  Am.  Eep,  622.     90, 

114,   227,  284. 
Chicago  &  N.  W.  Ey.   Co.  v.   Ellson, 

113   Mich.   30,   71   N.   W.  324.     53, 

541, 
Chicago    &    X.    W.    Ey.    Co.    v.    Fort 

Howard,  21  Wis.  44,     50,  541,  567. 

Chicago  D.  &  C.  Co.  v.  Garrity,  115 

111.  15.5,  3  N,  E.  448.     88. 
Chicago  I.  &  K.  E.  E.  Co.  v.  KnuflFke, 

36  Kan.  367,  13  Pac.  582.     380. 
Chicago  M.  &  St.  P.  Ey.  Co.  v.  County 


XXVI 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

of  Houston,  38  Minn.  513,  38  N.  W. 

619.    561. 

Chidloy    V.    Churcliwardcns    of    West 

Ham,  32  L.  T.  R.  486.     30,  43,  577. 

Childress  v,  Wright,  2  Cold.  350.     86, 

378. 
Childs  V.  Hurd,  32  W.  Va.  66,  9  S.  E. 

362.     200,  218,  424. 
Chilvers  v.   Eace,   196   111.   71,   63   N. 

E.  701.     284,  523. 
Choate  v.  Kimball,  56  Ark.  55,  19  S. 

W.  108.     4,  31,  412,  466. 
Choteau  v.   Thompson,   2   O.   St.   114. 

408. 
Christian  v.  Dripps,   28  Pa.   St.   271. 
25,    297,    381,    385,    413,    443,    461, 
618. 
Church  V.  Griffith,  9  Pa.  St.  117,  49 

Am.  Dee.  548.    431. 
Church  V.  Lapham,  94  App.  Div.  550, 

88  N.  Y.  Supp.  222.     382,  501. 
Churchward  v.  Studdy,  14  East.  249. 

328. 
Ciealla  v.  Miller,  105  Tenn,  255,  58  S. 

W.  210.     532. 
Cicero  &  P.  S.  E.  Co.  v.  Chicago,  176 

HI.  501,  52  N.  E.  866.     563. 
Cincinnati  N.  O.  &  T.  P.  E.  E.  Co.  v. 
Commonwealth,    81   Ky.   492.      566. 
Citizens'  Bk.  v.  Crooks,  21  La.  A.  324. 

537. 
Citizens'  Bk.  v.  Knapp,  232  La.  Ann. 

117.     74,  399. 
Citizens'  Bk.  v.  Maureau,  37  La.  A. 

857.     407. 
Citizens'  Bk.  v.  Miller,  44  La.  A.  199, 

10  So.  777.     407. 
Citizens'   Bk.    v.    Wiltz,    31    La.    An. 

244.     365. 
Citizens'  Nat.  Bk.  v.  Strauss,  29  Tex. 
Civ.  App.  407,  69  S.  W.   86.     408. 
City  of  Buffalo,  Be,   1   N.  Y.  St.  R. 

742.     152,  217. 
City   of   Crawfordsville  v.   Boots,   76 

Ind.  32.     397. 
City  of  Dubuque  v.  Illinois  C.  E.  E., 
39  Iowa  56.    566. 


THH   BOTTOM    PAGES.] 

Clafflin  V.  Carpenter,  4  Met.  580.    373. 
Clap  V.  Draper,  4  Mass.  266.     375. 
Clark   V.   Banks,    6   Hous.    584.      351, 

353,  354,  363,  364. 
Clark  V.  Bartorf,   1   N,  Y,   S.  C.  E. 

58.     351. 
Clark   V.   Bulmer,    11    M.   &   W.    243. 

663,  665. 
Clark  V.  Burnside,  15  111.  62.     305. 
Clark  V.  Calvert,   8  Taunt.  742,  3  B. 

Moore  107.    365,  550,  655. 
Clark  V.  Crownshaw,  3  B.  &  Aid.  804. 

504. 
Clark  V.  Gaskarth,  8  Taunt,  431.    365, 

550. 
Clark  V.  Guest,  54  O.  St.  298,  43  N. 

E.  862.     374. 
Clark  V.  Harvey,  54  Pa.  St.  142.     354. 
Clark  v.  Hill,  117  N.  C.  11,  23  S.  E. 

91,  53  Am.  St.  Eep.  574.     407. 
Clark  V.  Jones,  1  Den.  516.     211. 
Clark  V.  McKnight,  25  Tex.  Civ.  App. 

60,  61  S.  W.  349.     61,   382. 
Clark  V.  Eeyburn,  1  Can.  281.    72,  73. 
Clark  V.  Smith,  1  N.  J.  Eq.  121.     422. 
Clark  V.  Wheaton,  62  Ga.  173.     342. 
Clarke   v.    Earl   of   Ormonde,    1    Jac. 

115.     322. 
Clarke   v.    Holford,    2    C.   &   K.    540. 

549,  639,  643,  656. 
Clarke    v.    Howland,    85    N.    Y.    204. 

260. 
Clarke  v.  Eannie,  16  Lans.  210.     353. 
Clarke  v.  Tresider,  4  Wyatt  W.  &  A. 

164.     213. 
Clarke's   Set.,    (1902)    2   Ch.    327,   71 
L.  J.  Ch.  593,  86  L.  T.  E.  653,  50 
W.  E.  585.     11. 
Clary   v.    Owen,    15    Gray   522.      420, 

647. 
Clayton  v.  Burtenshaw,  5  B.  &  C.  41. 

517. 
Cleaver  v.   Culloden,   15   U.   C.   Q.  B, 

582.     382,  642. 
Clemence  v.  Steere,  1  E.  I.  272.    265, 

284. 
Clemens  v.  Murphy,  40  Mo.  121.    228. 


TABLE  OF  CASES. 


XXVll 


[REFERENCES  AKB  TO  THE  BOTTOM  PAGES.] 


Clemens '  Est.,  Ee,  9  N.  Y.  Supp.  474, 

2   Connoly  Surr.  237.     351. 
Clement  v.  Commomvealth,  20  Ky.  L. 

K.  688,  47  S.  W.  450.     670. 
Clement   v.   Wheeler,    25    N.    H.    360. 

606. 
Cleveland    Wks.    v.    Lang,    67    N,    H. 

348,  31  Atl.  20.    480. 
Cleves  V.  Willougliby,  7  Hill.  83.    404. 
Clifton   V.   Jackson    I.   Co.,    74    Mich. 

183,  41  N.  W.  891.     341,  377. 
Climer  v,  Wallace,  28  Mo.  556,  75  Am. 

Dec.  535.     92,  454. 
Climie  v.  Wood,   L.   E.   3   Exch.   257, 

37  L.  J.  N.  S.  E.  158,  18  L.  T.  N. 

S.  609,  L.  E.  4  Exch.  328,  38  L.  J. 

N.  S.  E.  223,  20  L.  T.  N.  S.  1012. 

2,  4,  6,  77,  308,  387,  405,  443,  555. 
Clore   V.   Lambert,   78   Ky.    224.      28, 

32,  60,  401,  415,  419,  438  543. 
Close  V.  Belmont  22  Gr.  Ch.  317.    482. 
Clove  S.  I.  Wks.  V.  Cone,  56  Vt.  603. 

561. 
Coates  V.  Caldwell,  71  Tex.  19,  8  S. 

W.  922.     365. 
Coatsworth,  Ee,  37  App.  Div.  295,  55 

N.  Y.  Supp.  753.     532. 
Cobel  V.  Cobel,  8  Pa.  St.  346.     340. 
Coburn  v.  Ames,  52  Calif.  385,  28  Am. 

Eep.  634.     247. 
Cochran  v.  Flint,  57  N.  11.  514.     84, 

104,  417. 
Cochrane   v.   Stevenson,    18   Sess.    Ca. 

4th  Ser.  1208,  28  Scot.  Law  E.  848. 

452. 
Cock  V.  Weathcrby,  13  IVIiss.  333.   329. 
Cockey    v.    Carroll,    4    Md.    Ch.    344. 

602. 
Cocking  V.  Ward,  1  (.".  B.  858.     515. 
Coddington   v.   Boebe,   29    N.   J.   550, 

31  N.  J.  477.     4,  31,  639. 
(,'oddington   v.   Dry   Dock   Co.,   31   N. 

J.  L.  477.     44,  431. 
Coe  V.   Columbus   P.   &  T.  E.  E.   Co., 

10  Ohio  St.  372.     50,  541. 
Coey's  Est.,  1  Tuck.  125.     313. 
(Joffin  V.  Coffin,  Jac.  70,     003. 


Coffin  V.  Talman,  8  N.  Y.  465.    527. 
Coflfman,  Ee,  93  Fed.  422.     369. 
Cohen  v.  Kyler,  27  Mo.  122.    389. 
Cohen  v.  Saint  L.  F.  E.  &  W.  E.  E. 

Co.,  34  Kan.  158,  8  Pac.  138.     89. 
Cohoon  V.  Simmons,  7  Ired.  189.    632. 
Coker  v.  Whitlock,  54  Ala.  180.     611. 
Cole  V.  Fitzgerald,  1  Sim.  &  Stu.  189, 

3  Euss.  301.     475. 
Cole  V.  Forth,  1  Mod.  95,  1  Lev.  309. 

127. 
Cole   V.   Greene,    1   Lev.   309,    1   Mod. 

95.     127. 
Cole  V.  Eoach,  37   Tex.  413.     21,   26, 

60,  394,  435,  444,  456. 
Cole  v.  Stewart,   11   Cush.   181.     393, 

411,  630. 
Colegrave  v.  Dias  Santos,   2  B.  &  C. 

76,  3  D.  &  E.  255.     2,  310,  399,  404, 

473,  647. 
Coleman    v.    Lewis,    27    Pa.    St.    291. 

103,   478. 
Coleman  v.  Smith,  55  Ala.  368.     611. 
Coleman  v.  Steams  Mfg.  Co.,  38  Mich. 

30,  19  Am.  Law  Eeg.  199.     32,  388, 

392,  409,  413. 
Coleman  v.  Witherspoon,  76  Ind.  285. 

422. 
Coles  V.  Coles,  37  Atl.   1025.     477. 
Coles  V.  Peck,  96  Ind.  333.     533. 
Collamore    v.    Gillis,    149    Mass.    578, 

22  N.  E.  46,  5  L.  E.  A.  150,  14  Am. 

St.  E.  460.    146,  152. 
Collier   v.   Cunningliam,    2    Ind.   App. 

254,  28  N.  E.  341.     360,  658. 
Collier  v.  Jenks,  19  E.  I.  137,  32  Atl. 

208,  61  Am.  St.  Eep.  741.     459. 
Collins  v.  Bartlett,  44  Calif.  371.     94, 

545. 
Collins  V.   CroMTiover,   57   S.   W.   357. 

357. 
Collins  V.  Mott,  45  Mo.  100.     426. 
Collins  V.  Eichart,  77  Ky.  621.     614. 
Colonial  Bk.  v.  Eiley,  22  Vict.  L.  E. 

288.     40.5. 
f'olorndo  Fuel  Co.  v.   Pueblo  W.  Co., 

1  I   ('(.lo.  App.  352.     559. 


XXVlll 


TABLE  OF  CASES. 


[REFEUENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Columbia  Tr.  Co.  v.  Kentucky  Ry.  Co., 

60  Fed.  794,  9  C.  C.  A.  264,  22  U. 

S.  App.  54.     50. 

Coman  v.  Thompson,  47  Mich.  22,  10 

N.  W.  62,  41  Am.  Rep.  706.     340. 

Comfort  V.  Duncan,  1  Miles  229.     354. 

Comfort   V.   Everhardt,    35   W.   N.   C. 

364.     99. 
Comfort   V.   Fulton,   39   Barb.   56,   13 

Abb.   Pr.   376.     668,  670. 
Commercial    Bk.     v.     Pritchard,     126 
Calif.  600,  59  Pac.  130.     122,  403, 
404. 
Commercial  Ins.  Co.  v.  Allen,  80  Ala. 

571,  1  So.  202.     8,  12,  379. 
Commissioners      of      Anne      Arundel 
County  V.  Baltimore  S.  Co.,  58  Atl. 
211.     62,  564. 
Commissioners    of    Chase    County    v. 

Shipman,  14  Kan.  532.     558. 

Commissioners  of  Chatham  County  v. 

Seaboard  A.  L.  Ey.  Co.,  133  N.  C. 

216,  45  S.  E.  506.    563. 

Commissioners    of    Pitkin    County    v. 

Brown,    2    Colo.    App.    473,    31    Pac. 

525.     150,  221,  223. 
Commissioners    of    Rush    County     v. 
Stubbs,  25  Kan.  322.     19,  32,  104, 
105,  107,  622. 
Commissioners  of  Taxes  v.  Kauri  T. 

Co.,  17  N.  Zea.  696.     373. 
Commonwealth   v.   Brooks,   164   Mass. 

397,  41  N.  E,  660.     87. 
Commonwealth  v.  Bruce,  79  Ky.  560. 

36,  677. 
Commonwealth     v.     Fitzgerald,      164 

Mass.  587,  42  N.  E.  119.     113. 
Commonwealth    v.    Lowell   Gas   Light 

Co.,  12  Allen  75.     559. 
Commonwealth  v.  Stephenson,  8  Pick. 

354.    677. 
Commonwealth  v.   Trimmer,   1    Mass. 

476.     677. 
Commonwealth  v.  Wesley,   166  Mass. 

248,  44  N.  E.  228.     117,  513. 
Compound  L.  Co.  v.  Murphy,  169  111. 
343,  48  N.  E.  472.     426. 


Comstock  V.  Scales,  7  Wis,  159.     366, 

367. 
Conde  v.  Lee,  55  App.  Div.  401,  67  N. 
Y.  Supp.  157,  171  ^'.  Y.  662,  64  N. 
E.  1119.     22,  33,  117,  140,  141,  208, 
520. 
Condit   V.   Goodwin,   89   N.   Y.   Supp. 

827.     417,   448. 
Conduitt  V.  Soane,   1   Colly.   Ch.   285. 

323. 
Coney 's  Case,  Godb.  122.     328. 
Confiscation   Ca.,    1    Wood    221,    Fed. 

Cas.   No.   3097.     533. 
Congdon  v.  Sanford,  Hill.  &  Den.  196- 

347. 
Conger  v.  Ensler,   85  App.  Div.   564, 

83  N.  Y.  Supp.  419.     529,  532. 
Congregational  Soc.  of  Dub.  v.  Flem- 
ing, 11  Iowa  533,  79  Am.  Dec.  511. 
21,  31,  62,  540,  618. 
Conklin  v.  Foster,  57  111.  104.     548. 
Conklin  v.  Parsons,   1   Chand.   230,   2 

Pinney  264.     53,  454. 
Conner  v.  Coffin,  22  N.  H.  538.     341, 

516. 
Conner  v.  Jones,  28  Calif.  59.    528. 
Conner  v.   Littlefield,   79   Tex.   76,   15 

S.  W.  217.     20. 
Conner  v.   Squiers,   50   Vt.    680.      70, 

395,  642. 
Conrad  v.  Saginaw  ^lin.  Co.,  54  Mich. 
249,  20  N.  W.  39,  52  Am.  Rep.  817. 
32,  137,  140,  151,  153. 
Conrad  v.  Starr,  50  Iowa  470.     265. 
Consolidated  C.  Co.  v.  Sabits,  57  111. 
App.  659.     592. 

Consolidated  Co.  v.  Baltimore,  62  Md 

588.    560. 
Consolidated  E.   Co.   v.   Crowley,   105 

La.  615,  30  So.  222.     426. 
Consumers'  G.  Co.,  Re,  30  Can.  L.  J. 

157.     560. 
Consumers'  G.  Co.  v.  Toronto,  27  Can. 

453,  23  Ont.  App.  551.    5.59. 

Cook  V.  Champlain  T.  Co.,  1  Den.  102. 
125,  140,  657. 


TABLE  OF  CASES. 


XXIX 


[KEFEKEXCES    ARE    TO 

Cook  V.  Condon,  6  Kan.  App.  574,  51 

Pac.  587.     28,  35,  61,  462. 
Cook  V.  Enright,  134  CaUf.  1,  66  Pac. 

3.     384. 
Cook  V.   Ottawa  Univ.   14  Kan.  548. 

422. 
Cook  V.   Sanitary  Dist.,   67   III.   App. 

286,  169  111.  184,  48  N.  E.  461,  39 

L.  E.  A.  369,  61  Am.  St.  Eep,  311. 

255. 
Cook  V.   Scheid,  4  Wkly.   Cin.  L.  B. 

1123,  8  Am.  Law  Eec.  493.     255. 
Cook  V.  Steel,  42  Tex.  58.    365,  368. 
Cook  V.  Whiting,  16  111.  480.     21,  53, 

435,  454. 
Cooke  V.  Cooper,  18  Ore.  142,  22  Pac. 

945,  7  L.  E.  A.  273.    423. 
Cooke  V.  McNeil,  49  Mo.  App.  81.    32, 

428. 
Cooke  V.  Miller,  54  Atl.  927.    529. 
Cooke's   Case,    Moore   177.     46,    127, 

132,  167,  189,  299,  300. 
Cooley  V.  Kansas  City  &c.  E.  E.  Co., 

149  Mo.  487,  51  S.  W.  101.     375. 
Coombs  V.  Beaumont,  5  B.  &  Ad.  72, 

2  Nev.  &  Man.  235,  2  L.  J.  N.  S.  K. 

B.  190.     123,  509,  544. 
Coombs  V,  Jordan,  3  Bland  Ch.,  311, 

22  Am.  Dec.  226.     423,  425. 
Cooper  V.  Adams,  6  Cush.  87.     118. 
Cooper  V.  Cleghom,  50  Wis.  113,  6  N. 

W.  491,  1  Ky.  L.  E.  303.     106,  107, 

427. 
Cooper  V.  Davis,  15  Conn.  556.     74, 

611,  612. 
Cooper  V.  Harvey,  16  N.  Y.  Supp.  660, 

41  N.  Y.  St.  E.  594.     29,  407,  418, 

472. 
Cooper  V.  Johnson,   143  Mass.   108,  9 

N.  E.  33,  3  N.  Eng.  B.  183.     140. 
Cooper  V.  Watson,  73  Ala.  252.     618, 

626,  628. 
Cooper  V.  Woolfit,  2  H.  &  N.  122,  3 

Jur.  N.  S.  370,  26  L.  J.  Exch.  310. 

350. 
Coor  V.  Smith,  101  N.  C.  261,  7  S.  E. 

669.     340. 


THE   BOTTOM    PAGES.] 

Cope  V.  Eomeyne,  4  McLean  384.     71, 

643. 
Cope  V.  Vallette  Dry  Dock  Co.,  16  Fed. 

924.     44. 
Copley  V.  O  'Neil,  1  Lans.  214.    94. 
Copp  V.  Swift,  26  S.  W.  438.     33,  56, 

57. 
Copper  V.  Wells,  1  N.  J.  Eq.  10.    528, 

529,   533. 
Corbett  v.  Laurens,  5  Eich.  301.     524. 
Corcoran  v.  Doll,  35  Calif.  476.     362. 
Corcoran  v.  Webster,  50  Wis.  125,  6 

N.  W.  513.    66,  68,  521. 
Corder   v.   Drakeford,    3    Taunt.    382. 

517. 
Core  v.  Bell,  20  W.  Va.  169.    612. 
Corey  v.  Bishop,  48  N.  H.  146.     182, 

201,  214,  460. 
Corle  V.  Monkhouse,  47  N.  J.  Eq.  73, 

20  Atl.  367.     355. 
Corliss  V.  McLagin,  29  Me.  115.     389,. 

390,  412. 
Corrigan  v.  Chicago,  144  111.  537,  33 

N.  E.  746.     196,  224. 
Corven's  Case,  12  Co.  105.     320,  324. 
Corwin   v.    Cowan,    12    Ohio    St.   629. 

117. 
Coi-nin    v.    Moorhead,    43    Iowa    466. 

102,  104,  109,  622. 
Cory  V.  Bristow,  L.  E.  1  C.  P.  D.  54, 

L.  E.  10  C.  P;  504,  44  L.  J.  M.  C. 

153,  2  App.  Cas.  262,  46  L.  J.  M.  C. 

273,    10    Cox    Mag.    172,    19    Eng. 

Eepts.  85.    568,  570,  571. 
Cory  V.  Churchwardens  of  Greenwich, 

L.  E.  7  C.  P.  499.     568,  571. 
Cosby  V.  Shaw,  23  L.  E.  Ir.   181,   19 

L.  E.  Ir.  307.     241. 
Cosgrove  v.   Troeschcr,   62   App.   Div. 

123,   70  N.  Y.   Supp.  764.     29,  56, 

436,  437,  447,  448,  450. 
Coster  V.  Cowling,  7  Bing.  456.     517. 
Cotten   V.   Willoughby,    83   N.    C.    75, 

35  Am.  Eep.  .564.     367,  368. 
Cotter  V.  :Metropolitan  Ey.  Co.,  12  W. 

E.  1021,  10  L.  T.  N.  S.  777.     123. 
Cottle  V.  Harrold,  72  Ga.  830.    601. 


XXX 


TABLE  OP  CASES. 


[REFEKENCES    ARE    TO 

Cottle  V.  Spitzer,  65  Calif.  456,  4  Pac. 

435.     338,  559. 
Cotton,  Ex  parte,  2  Mont.  Dea.  &  DeG. 

725,  6  Jur.   1045.     413,  504. 
Cottrell  V.  Apsey,  6  Taunt.  322.     665. 
Cottrell   V.    Griffin,    18    N.    Y.    Wkly. 

Dig.  270.    452. 
Couch  V.  Welsh,  24  Utah  36,  66  Pac. 

600.      140,   151,   161. 
Coulter's  Case,  5  Co.  30  b.    79. 
Countess  of  Lincoln  v.  Duke  of  New- 
castle, 3  Ves.  Jr.  387,  12  Ves.  Jr. 

218.     322. 
Covenhoven   v.   Shuler,   2    Paige   122. 

323. 
Covington  Gas-Light  Co.  v.  Covington, 

84  Ky.  94,  7  Ky.  L.  E.  763.     560, 

561. 
Cowan  V.  Assessor  for  Midlothian,  21 

Sess.  Ca.  4th  Ser.  812.    122,  573. 
Cowart  V.   Cowart,  71  Tenn.  57.     33, 

419,  543. 
Cowden  v.  Saint  John,  16  Iowa  590. 

412. 
Cowell,  Ex  parte,   12  Jur.  411.     405. 
Cowell  v.  Phoenix  Ins.  Co.,  126  N.  C. 

684,  36  S.  E.  184.     66,  219. 
Cox  V.  Cook,  46  Ga.   301.     365. 
Cox  v.  Douglas,  20  W.  Va.  175.     602. 
Cox  V.   Godsalve,   Holt's   MSS.,    157. 

351. 
Cox  v.  Eicraft,  2  Lee  Ecc,  373.     327. 
Craddock    v.    Eiddlesbarger,    2    Dana 

205.     334,  364. 
Craig  V.  Dale,  1  W.  &  S.  509.     354. 
Craig   V.   Watson,   68   Ga,    114.      362, 

658. 
Cramp    v.    Bayley,    Kent    Lent    Ass. 

1819.     325. 
Crane  v.  Brigham,   11   N.  J.   Eq.  29. 

31,  378,  387,  390,  433,  439,  445. 
Crane  Iron  Wks.  v.  Wilkes,  64  N.  J. 

L.  193,  45  Atl.  1033.     32,  436,  442. 
Cranston  v.  Beck,  56  Atl.  121.    417. 
Crapo  V.  Seybold,  36  Mich.  444.     365. 
Crawford  v.  Findlay,   18  Gr.   Ch.  51. 
33,  46,  443,  455,  462. 


THE    BOTTOM    PAGES.] 

Crawfordsville   v.   Boots,   76   Ind.   32. 

397. 
Creager  v.  Creager,  87  Ky.  449,  9  S. 

W.  380.     341. 
(Jream  Cy.  M.  P.  Co.  v.  Swedish  B.  & 

L.  A.,  74  111.  App.  362.    484. 
Creel  v.  Kirkham,  47  111.  344.    350. 
Crenshaw  v.  Crenshaw,  2  Hen.  &  Mun. 

22.     296. 
Crerar  v.  Daniels,  109  111.  App.  654, 

209  111    296,  70  N.  E.  569.     20,  32, 

35,  137,  143,  202. 
Cresson  v.  Stout,  17  John.  116,  8  Am, 

Dec,  373.     74,  441,  618,  619. 
Crest  v.  Jack,  3  Watts  238.     86,  92, 
Crews  V,  Pendleton,  1  Leigh  297,    344. 
Crine  v.  Tifts,  65  Ga.  644.     368. 
Crippen  v.  Morrison,  13  Mich.  35,    73, 

414,  478,  483,  488. 
Crocker  v.  Donovan,  1  Ok.  165,  30  Pac, 

374.     170,  385,  558. 
Crocker  v.  Fox,  1  Eoot.  323.     591. 
Crockett  v.  Crockett,  2  Ohio  St.  180, 

604,  613. 
Crockett  v,  Northampton,  72  L.  J.  K. 

B.  320.    573. 
Cromie  v.   Hoover,  40  Ind.  49,     149, 

150,  194,  205, 
Crosby  v,  Moses,  48  N,  Y,  Super,  146, 

534. 
Crosby    v.    Wadsworth,    6    East.    602. 

364,  371, 
Cross  V.  Barnes,  46  L.  J.  Q.  B.  479. 

388,  407,  443,  537. 
Cross  V.  Marston,  17  Vt.  533,  44  Am. 

Dec.  353.     22,  81,  83, 
Cross  V,  Weare  Com.  Co.,  153  111.  499, 

38  N.  E.  1038,  40  Am.  St.  Eep.  902. 

35,  398,  521. 
Crotty  V.  Collins,  13  111.  567.     361. 
Crouch  V.  Smith,  1  Md.  Ch.  401.     435. 
Crowe  V.  Wilson,  65  Md.  479,  5  Atl, 

427,  57  Am.  Eep,  343,  3  Cent,  881. 

607. 
Crum  V,  Hill,  40  Iowa  506.     55,  382, 
Cubbins  v.  Ayres,  72  Tenn.  329.     30, 

141,  143,  155,  251. 


TABLE  OF  CASES. 


XXXI 


[REFERENCES    ARE    TO 

Cudworth  v.  Scott,  41  N.  H.  456.    366, 

368. 
Cullers  V.   James,  66   Tex.   494,   1   S. 

W.  314.    114,  152. 
Culleton  V,  Keune,  18  Ky.  L.  E,  1065, 

39  S.  W.  511.    263. 
Culling   V.    Tuffnal,    Bull.    N.    P.    34. 

14,  165,  178. 
Cullwick  V,  Swindell,  L.  E.  3  Eq.  249, 

36   L.   J.   Ch.    173,    15   W.   E.   216. 

401,  405,  406,  413,  473,  504. 
Cumberland  B.  Co.  v.  Maryport  I.  Co., 

(1892)  1  Ch.  415,  61  L.  J.  Ch.  227, 

66  L.  T.  E.  108,  40  W.  E.  280.    406. 
Cumberland  M,   Ey.   v.   Portland,   37 

Ue.  444.     566. 
Cumberland  Nat.  Bk.  v.  Baker,  57  N. 

J.  Eq.  231,  40  Atl.  850.    367. 
Cummings  v.  Tindall,  4  Stew,  &  Port. 

357.    315. 
Cunningham  v.  Coyle,  2  Tex.  Ct.  App. 

Civ.  Ca.,  s.  423.     365. 
Cunningham  v.   Cureton,  96  Ga.  489, 

23  S.  E.  420.     408,  486. 
Cunningham   v.   Seaboard   E.   Co.,   58 

Atl.  819.     407,  448. 
Cunningham  v.  Webb.  69  Me.  92.   397. 
Cuppy  V.  0  'Shaughnessy,  78  Ind.  245. 

136,  223,  603,  607. 
Curiae  v.  Tex.  H.  I.  Co.,  73  S.  W.  831. 

408. 
Curnew  v.  Lee,  143  Mass.  105,  8  N.  E. 

890.    427. 
Curran  v.  Smith,  37  111.  App.  69.     48, 

430. 
Current  E.  L.  Co.  v.  Cravens,  54  Mo. 

App.  216.     426. 
Currier  v.   Cummings,  40   N.   J.   Eq. 

145,  3  Atl.  174,  2  Cent.  200.     427. 
Curry  v.  Schmidt,  54  Mo,  515.    457. 
Curtis  V.  Lcasia,  78  Mich,  480,  44  N. 

W.  500.     33,  98. 
Curtis  V.  Eiddle,  7  Allen  185.     103, 

108. 
Curtiss  V.  IToyt,  19  Conn.  165,  48  Am. 

Deo,  149.     102,  103. 
Cutler  V.  Pope,  13  Me.  377.    371. 


THE   BOTTOM    PAGES.] 

Cutter  V.  Wait,  131  Mich.  508,  91  N. 

W.  753,     382,  384,  620,  626, 
Cutting  V.  Pike,  21  N.  H.  347.     65. 
Dacre's  Case,  1  Lev,  58,     659, 
Daglish,  Ex  parte,  L,  E.  8  Ch.  App. 

1072,   21   W.   E.   893,   42   L,   J.   B. 

102,  29  L.  T.  N,  S.  168,  7  Eng,  E, 

562,    470,  491,  494,  495,  497,  499. 
Dail  v.  Freeman,  92  N,  C,  351,     67, 

343, 
Dakota  L,  Co.  v.  Parmalee,  5  S,  D, 

341,  58  N,  W.  811.     616. 
Dalton  V.  Whittem,  3  Q.  B.  961.    552, 

643,  644. 
Daly  V.  Marshall,  4  N,  Z,  L.  E.  Supr. 

Ct.  28,     8,  200,  255. 
Dame  v.  Dame,  38  N.  H.  429,  75  Am. 

Dec.  195.     103,  107,  182,  201,  214, 

363,  478,  651. 
Dame  Wiche's   Case,   9   Edw.   4,    14. 

320. 
Damery  v.  Ferguson,  48  III.  App.  224. 

341,  349. 
Dana  v.  Burke,  62  N.  Ham.  627.     47. 
Daniels  v.  Bailey,  43  Wis.  566.     375. 
Daniels  v.  Bowe,  25  Iowa  403,  95  Am. 

Dec.  797.     411. 
Daniels  v.  C.  I.  &  N.  E.  Co.,  41  Iowa 

52.    90. 
Daniels  v.  Detwiler,  14  Montg.  Co.  58. 

33,  448. 
Daniels  v.  Pond,  21  Pick.  357,  32  Am. 

Dec.  269.     180,  182,  642. 
Darby  v.  Farrow,  1  McCord  517.    237. 
Darby  v.  Harris,   1   Q.  B.   895.     552, 

553. 

Darby  v.  Whitaker,  5  W.  E.  772.    528. 
Darcy  v.  Askwith,  Hob.  234.     194. 
Darnell  v.  Jones,  24  Ky.  L.  K.  2091, 
72  S.  W.  1108.     92. 

Darrah  v.  Baird,  101  Pa.  St.  265,  15 
Eep.  247,  22  Am.  Law  Eog.  532,  40 
Leg.  Intel.  121,  13  Wkly.  N.  Cas. 
332,  13  Pitts.  Leg.  J.  215,  12  Pitts. 
Leg.  J.  240.  122,  200,  207,  647, 
654. 


xxxu 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Dascey  v.  Harris,  65  Calif.  357,  4  Pac. 

204.     369. 
Daubner,  Re,  96  Fed.  S05.     369. 
Davenport   v.    !Magoon,   13   Ore.   3,   4 

Pac.  299,  57  Am.  Eep.  1.    608. 
Davenport  v.  Shants,  43  Vt.  546.    390, 

392,  415,  537,  486. 
Davidson  v.  Crump  Mfg.  Co.,  99  Mich. 

501,  58  N.  W.  475.     224. 
Davidson    v.    Westchester    Gas-Light 

Co.,  99  N.  Y.  558,  2  N.  E.  892,   ] 

Cent.  238,  2  East.  R.  312.    104,  410, 

440. 
Davies  v.  Connop,  1  Price  53.     353, 

655. 
Davies  v.  Powell,  Willes  46,  7  Mod. 

249.     328,  330,  549. 
Davis   V.    Brocklebank,    9    N.    H.    73. 

358. 
Davis  V.  Buflfum,   51   Me.   160.     198, 

478,  481,  649,  651. 
Davis  V.  Callahan,  66  Mo.  App.  168. 

361,  520. 
Davis  v.  Danks,  3  Exch.  435,  18  L.  J. 

Ex.  213.     635,  637. 
Davis  v.  Easley,  13  111.  192.     620. 
Davis  v.  Eastham,  81  Ky.  116,  4  Ky. 

L.  E.  850.     26,  28,  62,  67,  170,  537, 

540. 
Davis  V.  Elliott,  7  Ind.  App.  246,  34 

N.  E.  591.    383. 
Davis  V.  Emery,  61  Me.  140.     65,  68, 

201. 
Davis  V.  Eyton,  7  Bing.  154,  4  M.  &  P. 

820.     210,  358. 
Davis  V.  Handy,  37  N.  H.  65.     397. 
Davis  V.  Jones,  2  B.  &  Aid.  165.     19, 

165,  648. 
Davis  V.  Leo,  6  Ves.  784.    603,  608. 
Davis    V.    McFarlane,    37    Calif.    634. 

370,  372. 
Davis  V.  Moss,  38  Pa.  St.  346.     140, 

150,  161,  198,  207,  211. 
Davis   V.    Mugan,   56   Mo.   App.    311. 

4,  29,  56,  388,  393,  412,  440. 
Davis  V.  Reamer,  105  Ind.  318,  4  N. 

E.  857.    44. 


TUB    BOTTOM    PAGES.] 

Davis  V.  stark,  30  Kan.  565,  2  Pac. 

637.     229. 
Davis  V.  Taylor,  41  111.  407.    650,  652. 
Davison  v.  Poole,  65  Tex.  376.     394. 
Davy  V.  Lewis,   18  U.   C.   Q.  B.   21. 

145,  227,  236,  259,  403. 
Dawdy,  Re,  15  Q.  B.  D.  426.    535. 
Dawson,  Re,  Ir.  L.  R.  2  Eq.  218,  16 

W.  R.  424.    433,  435. 
Dawson  v.  State,  52  Ind.  478.     674. 
Dawson   T.   &   Co.,   Ro,   Ir.   R.   2   Eq. 

218,  16  W.  R.    492,  499,  504. 
Day   V.   Austin,   Owen    70,   Cro.    Eliz. 

374.     132,  139,  167,   196,  299,  544, 

656. 
Day  V.  Bisbitch,  Owen  70,  Cro.  Eliz. 

374.     196,  544,  656. 
Day  V.  Merry,  16  Ves.  375.     266,  606. 
Day  V.  Perkins,  2  Sandf.  Ch.  359.   403, 

405. 
Dayton   v.   Dakin,    103    Mich.    65,    61 

N.  W.  349.     344,  370. 
Dayton   v.   Vandoozer,   39   Mich.    749. 

360. 
Deal  V.   Palmer,   72   N.   C.   582.      26, 

443. 
Deal  V.  Smart,  1  Tex.  Ct.  App.  Civ. 

610.     33,  483. 
Dean  v.  Allaley,  3  Esp.  11.     149,  153, 

168,  239,  254,  301. 
Dean  v.  Feely,  69  Ga.  804.     524. 
Dean    v.    Pyncheon,    3    Pinney    17,    3 

Chand.  9.     397,  546,  548,  659. 
Deano  v.  Hutchinson,  40  N.  J.  Eq.  83, 

2   Atl.   292,   2   East.   R.   542.      135, 

236. 
Dearden  v.  Evans,  5  M.  &  W.  11.     83. 
Deardorff    v.    Everhartt,    74    Mo.    37. 

426. 
Debow  v.   Colfax,    10   N.  J.   L.    128. 

357,  359. 
Decell   V.   McRee,   35   So.    940.      104, 

615. 
Decker  v.  Fisher,  4  Barb.  592.     329. 
Deeble  v.  McMullen,  8  Ir.  C.  L.  355. 

142,  206,  234,  254. 
Deering  v.  Ladd,  22  Fed.  575.     104. 


TABLE  OF  CASES. 


xxxm 


[KEFERKNCES    ARE   TO 

DeFalbe,    Ee    [1901],     1     Ch.     523, 
[1902]  A.  C.  157,  70  L.  J.  Ch.  286. 

4,  33,  265,  277,  278,  308,  474. 
Defiance  M,  Wks.  v.   Trisler,   21   Mo. 

App.  69.     417. 
DeGraffenreid  v.   Scruggs,  4  Humph. 

451,   40   Am.   Dec.   658.      378,   391, 

437. 
Deishler   v.    Golbaugh,    2   Ky.   L.    E. 

231.     251,  525. 
DeLacy   v.    Tilhnan,    83   Ala.   155,    3 

So.  294.     28,  71,  388. 
DeLaine  v.   Alderman,   31   S.  C.   267, 

9  S.  E.  950.     114. 
Delaware  L.  &  W.  E.  E.  Co.  v.  Ox- 
ford Iron   Co.,   36   N.   J.   Eq.   452. 

46,  390,  391,  392,  407,  462,  464. 
Demby  v.  Parse,  53  Ark.  526,  14  S. 

W.  899,  12  L.  E.  A.  87.     284. 
Demi  v.  Bossier,  1  Penn.  224.     354. 
DeMott    V.    Hagerman,    8    Cow.    220. 

361,  628. 
Den  V.  Craig,  15  N.  J.  L.  191.    657. 
Denham  v.  Sankey,  38  Iowa  269.   115, 

110. 
Dennett   v.   Dennett,   43    N.   H.   499. 

608,  613. 
Dennett  v.  Hopkinson,  63  Me.  350,  18 

Am.  Eep.  227,   13  Am.  L.  Eeg.  N. 

8.  359.    350. 
Denver  T.  &  W.  Co.  v.  Swem,  8  Colo. 

HI,  5  Pac.  836.     216,  664. 
D'Eresby,    Ex    parte,    43    L.    T.    K. 

638,  22  Alb.  L.  J.  382,  44  L.  T.  E. 

781,  29  W.   E.   527,   15  Co.   Ct.  & 

B.  39,   163.     4,   75,   251,   259,   508, 

510. 
Deslogo  V.  Pearce,  38  Mo.  600.     117. 
Dos  Moines  W.  Co.,  Ee,  48  Iowa  324. 

564. 
Despatch  Line  of  Packets  v.  Bellamy 

Mfg.   Co.,   12   N.   H.   205,   37   Am. 

Dec.   203.      21,    27,   378,   388,   389, 

391,  397,  433,  .543,  .559,  .560. 
Detroit    v.    Wayne    Circ.    Judge,    127 

Mich.  604,  86  N.  W.  1032.     566. 
Detroit  &  B.  C.  E.  E.  Co.  v.  Busch, 


THE   BOTTOM    PAGES.] 

43    Mich.    571,    6    N.    W.    90.     84, 

647. 
Detroit  &c.  E.  E.  Co.  v.  Forbes,  30 

Mich.  166.     516. 
Detroit  U.  Ey.  v.  Board  of  Commis- 
sioners, 98  N.  W.  997.     58,  564. 
Devin    v.    Dougherty,    27    How.    Pr. 

455.     143,  256. 
Dewar   v,    Mallory,    26    Gr.    Ch.    618. 

471. 
Dewey  v.  Brownell,  54  Vt.  441.    422. 
Dewey   v.   Walton,    31    Neb.    819,   48 

N.  W.  960.     425. 
Dewitt  V.  Mathey,  18  Ky.  L.  E.  257, 

35  S.  W.  1113.     13. 
Dewitz    V.    Shoeneman,    82    111.    App. 

378.     647. 
D  'Eyncourt  v.  Gregory,  L.  E.   3  Eq. 

382,  36  L.  J.  N.  S.  Ch.  107,  15  W. 

E.   186.      21,    31,    38,   44,    82,    277, 

278,  309,  450. 
Dickey  v.  Wilkins,  17  So.  374.     355. 
Dickinson,    Ex   parte,    29    S.    C.   453, 

7  S.  E.  593.     543. 
Dickinson  v.  Baltimore,  48   Md.  583. 

591,  592. 
Dickinson  v.  Jones,  36  Geo.  97.     606. 
Dickson    v.    Hunter,    29    Gr.    Ch.    73. 

26,  388,  407. 
Dietrich  v.  Murdock,  42  Mo.  279.   117. 
Dietrichs  v.   Lincoln  &  N.   W.  E.   E. 

Co.,  13  Neb.  43,  13  N.  W.  13.     19, 

478. 
Dietz   V.    Mission    Co.,    95   Calif.    92, 

30  Pac.  380.     398. 
Diffedorfer  v.  Jones.     354. 
Dimmock   v.    Cook    Co.,    115    Pa.    St. 

57.3,   8   Atl.   627.     428. 

Dingley  v.  Buffum,  57  Me.  381.  142, 
198,   213. 

Dircka  v.  Brant,  56  Md.  500.  353, 
354. 

District  Tvqt.  of  Corwin  v.  Moore- 
head,  43  Iowa  466.  102,  104,  109, 
622. 

Dixon    V.    Mackay,    38    Can.    Law   J. 


XXXIV 


TABLE  OF  CASES. 


[references  are  to  tub  bottom  pages.] 


653,  22  Can.  L.  T.  O.  N.  374.     19, 

95,  537,  546. 
Doak   V.   Wiswell,   38   Me.    569.     94, 

194,  284. 
Dobbins    v.    Lusch,    53    Iowa    304,    5 

N.  W.  205.     345,  358,  363. 
Dobschuetz   v.   Holliday,   82   111.    371. 

122,  209,  427,  430,  432. 
Docking    v.    Frazcll,    34    Kan.    29,    7 

Pac.    618,    38    Kan.    420,    17    Pac. 

160.     32,  61,  144,   195. 
Dodder  v.  Snyder,   110   Mich.  69,   67 

N.  W.  1101.     375. 
Dodge  V.  Beattie,  61  N.  H.  101.     114, 

546. 
Dodge  V.  Berry,  26  Hun  246.     83. 
Dodge  V.  Hall,  168  Mass.  435,  47  N. 

E.  110.     429. 
Dodge  Cy.  Wat.  Co.  v.  Alfalfa  Land 

Co.,  64  Kan.  247,  67  Pac.  462.     28, 

402. 
Doe  V.  Burt,  1  Term.  704.     259. 
Doe  V.  Davis,  15  Jur.  155.     248. 
Doe    V.    Witherick,    3    Bing.    11,    10 

Moore  267.     361. 
Dollar    V.    Eoddenbery,    97    Ga.    148, 

25  S.  E.  410.     342. 
DoUiver  v.  Ela,  128  Mass.  557.     104, 

651,  652. 
Dominick   v,    Farr,    22    S.    Car,    585. 

479,  623. 
Don  V.  Warner,  28  Nova  S.  202,  26 

Can.  388.     499. 
Donkin   v.   Crombie,   11   U.   C.   C.   P. 

601.     63,  76,  200,  211,  236. 
Donnelly  v.  Frick  &  L.  Co.,  207  Pa. 

St.  597,  57  Atl.  60.     205. 
Donnelly  v.  Thieben,  9  111.  App.  495. 

124,  199,  649,  662,  663. 
Donnewald    v.    Turner    Co.,    44    Mo. 

App.  350.     29,  208,  210,  545. 
Donovan   v.    Consolidated   C.    Co.,    88 

111.  App.  589.     641. 
Donworth  v.  Sawyer,  94  Me.  242,  47 

Atl.  527.     333. 
Dooley    v.    Crist,    25    111.    551.      31, 

102,  381. 


Doran  v.  Willard,  14  N.  B.  358.     19, 

33,  382,  394,  647. 
Dorcmus  v.  Howard,  23  N.  J.  L.  390. 

366. 
Doreu    v.   Lupton,    154   Ind.    396,    56 

N.  E.  849.     657. 
Dorr  v.  Dudderar,   88  111.   107.     619, 

620. 
Dorsett   v.   Gray,   98   Ind.   273.      355. 
Dorsey    v.    Eagle,    7    Gill    &    J.    331. 

353. 
Doscher    v.    Blackiston,    7    Ore.    143. 

19,  30,  87. 
Dostal    v.    McCadden,    35    Iowa    318. 

143,  150,  199,  486. 
Doty  v.   Gorham,   5   Pick.  487.      103, 

112,  153. 
Dougherty  v.  McCalgan,  6  Gill    &  J. 

275.     422. 
Dougherty   v.    Spencer,    23    111.    App. 

357.     167,  195,  603. 
Doughty  V.   Owen,   19   Atl.   540.      29, 

388,  390. 
Douglas  V.   Shumway,   79   Mass.   498. 

373. 
Douglass  V.   Anderson,   28   Kan.   262. 

205,  523,   535. 
Douglass   V.   Bunn,    110   Ga.    159,    35 

S.  E.  339.     374. 
Douglass    V.    Wiggins,    1    John.    Ch. 

435.    601. 
Dover  v.  Maine  W.  Co.,  90  Me.  180, 

38  Atl.   101.     560. 
Dowall  V.  Miln,   1   Sess.  Ca.  4th  Ser. 

1180.     30,  60,  296,  303,  437,  442. 
Dowd  V.  Fawcett,  4  Dev.  95.     80. 
Downard  v.  Groff,  40  Iowa  597.     345. 
Downes  v.  Craig,  9  M.  &  W.  166.   292. 
Downing    v.     Marshall,     1    Abb.    Ct. 

App.  Dec.  525.     303,  473. 
Downshire    v.    Sandys,    6    Ves.    107. 

266,  606. 
Dows  V.   Congdon,   16  How.  Pr.   571. 

90,  410. 
Drake  v.  Howell,   133  N.   C.   162,  45 

S.  E.  539.     374. 
Draper  v.  Barnes,  12  K.  I.  156.    339. 


TABLE  OF  CASES. 


XXXV 


[references  are  to 

Dreiske  v.   People's   L.   Co.,   107  111. 

App.  285.     206,  218. 
Driesbach   v.   Boss,   195   Pa.   St.   278, 

45  Atl.  722.     397. 
Dryden   v.   Kellogg,   2   Mo.   App.   87. 

217,  228,  660. 
Dubois  V.  Beaver,   25  N.  Y.   123,   82 

Am.  Dec.  326.     100. 
Dubois    V.    Bowles,    30    Colo.    44,    69 

Pac.   1067.     337. 
Dubois  V.   Kelly,   10  Barb.   496.     22, 

150,   157,   170,   193,   194,   203,   218, 

219,  221,  481. 
Dubuque   v.   Illinois   Cent.   E.   R.,   39 

Iowa  56.     566. 
Duck   V.  Braddyl,   1   McClel.   217,   13 

Price  455.     517,  552,  556. 
Dudley    v.    Foote,    63    N.    H.    57,    56 

Am.    Rep.   489,    18    Eep.   631.      67, 

303. 
Dudley  v.  Hurst,  67   Md.   44,   8   Atl. 

901,   1   Am.  St.  Eep.   368.     28,   38, 

47,  388,  389. 
Dudley    v.    Jamaica    P.    Corp.,    100 

Mass.  183.     560. 
Dudley  v.   Warde,   1   Ambl.   113.     3, 

134,   138,   140,   148,   150,    155,   159, 

160,   176,   189,   198,   212,   272,    273, 

301,  302,  303,  607,  615. 
Duff  V.   Bindley,   16   Fed.   178.     457. 
Duff  V.  Snider,  54  Miss.  245.     217. 
Duffield  V.  Whitlock,  26  Wend.  55,  1 

Hoff.  Ch.  IIU.     533. 
Duffus  V.  Bangs,   122   N.  Y.  423,   25 

N.  E.  980,  34  N.  Y.  St.  R.  222,  43 

Hun  52,  6  N.  Y.  St.  R.  553.     144, 

162,    199,    208,    223. 
Duffus  V.  Howard  F.  Co..  8  App.  Div. 

567,  40  N.  Y.  Supp.  925,  75  N.  Y. 

St.  R.  320,  37  N.   Y.  Siipp.  19,   15 

Misc.    169,    72    N.    Y.    St.    R.    172. 

450,  483. 
Duko   V.    Shacklcford,    56    Miss.    552. 

104,  479,  622. 
Dnke  of  Beaufort  v.  Bates,  31  L.  S. 

Ch.    481,    3    DoO.    F.    &   J.    381,    8 

Jur.  N.  S.  270,  10  W.  R.  200,  6  L. 


THE   BOTTOM    PAGES.] 

T.   N.   S.   82,   10  W.  R.   149,   5  L. 

T,  N.  S.  546.     21,  240,  241. 
Duke   of   Buckingham  v.   Lord   Pem- 
broke, 3  Keb.  74.     650. 
Dumergue  v.  Rumsey,  2  H.  &  C.  777, 

12  W.  R.   205,  33  L.  J.  Exch.   88, 

10  Jur.   N.  S.  155,  9  L.   T.   N.   S. 

775.     122,  242,  251,  545. 
Dundee   v.    Carmichael,    4    Sess.    Cas. 

5th  Ser.  525.     9,  573. 
Dundee    Assessor    v.    Carmichael,    39 

Sc.  L.  Rep.  573.    564. 
Dunford   v.   Jackson,    22    S.    E.    863. 

350. 
Dunkart   v.   Rinehart,   87   N.   C.   224. 

602, 
Dunman  v.   Gulf  &c.   Ry.   Co.,   26   S. 

W.  304,  24  S.  W.  701.  36,  265, 
Dunn  V.  Bagby,  88  N.  C.  91.  192. 
Dunn  V.  Garrett,  7  N.  B.  218.     141, 

204,  224,  598,  665. 
Dunne  v.  Ferguson,  Hayes  540.     337, 

369,  370,  371. 
Dunnell   v.   Henderson,   23   N.  J.   Eq. 

174.     10. 
Dunsmuir  v.  Port  Angeles  W.  Co.,  24 

Wash.  104,  63  Pac.  1095.     104. 
Dunstedter  v.  Dunstedter,  77  111.  580. 

87. 
Duntz   V,   Granger  B.   Co.,   83   N.   Y. 

Supp.  957,  41  Misc.  177.     417,  483, 

485. 
Duperrouzel,  Re,  9  Leg.  News,  Montr. 

380.     8,  225. 
Duren  v.  Strait,   16  S.  C.  465.     662. 

Durkee  v.  Powell,   75  App.  Div.  176, 
77  N.  Y.  Supp.  368.     447. 

Dustin    V.    Crosby,    75    Me.    75.      382, 

383,  386. 
Dutro   V.   Kennedy,    9    Mont.    101.    22 

Pac.  763.     388,   395,  407,  436. 
Dutton   V.    Ensley,    21    Ind.   App.    46, 

51    N.  E.   380,  69  Am.   St.   R.   340. 

26,  92. 
Dyer    Company's    App.,    21     Pa.    Co. 

442.     217,  561. 


XX  XVI 


TABLE  OF  CASES. 


[refekencks  auk,  to 

Eaglehawk    v.    Lady    Barkly    Co.,    7 

Aust.  L.  T.  72.     558. 
Earley    v.    Withers,    1    Pearson    248. 

tiit,   519. 
Earl  of  Bedford  v.  Smith,  Dy.  108b. 

605,  652. 
Earl  of  Macclesfield  v.  Davis,  3  Ves. 

&  Bea.  16.     324. 
Earl    of    Mansfield   v.   Blackburne,    6 

Bing.  N.  C.  426,  8  Scott  720.     140, 

254,   258. 
Earl      of      Northumberland's      Case. 

Owen  124.     321. 
Earl  Talbot  v.  Scott,  4  Kay  &  John. 

96.     603. 
Early  v.  Burtis,  40  N.  J.  Eq.  501,  4 

Atl.  765,  2  Cent.  745.     434. 
East  V.  Ealer,  24  La.  A.  129.     436. 
Eastern   Ark.    Fence    Co.    v.    Tanner, 

67  Ark.  156,  53  S.  W.  886.     13. 
East  London  W.  Co.  v.  Mile  End,  17 

Q.  B.  512,  21  L.  J.  M.  C.  49.     569. 
Eastman  v.  Foster,  8   Met.   19.     381, 

488. 
East  Sugar-Loaf  Co.  v.  Wilbur,  5  Pa. 

Dist.  202.     224,  533. 
East    Tenn.  V.  &  G.  Ry.  Co.  v.  Mor- 

ristown,  35  S.  W.  771.     217,  561. 
Eastwood  V.  Brown,  1  Ey.  &  M.  312. 

512. 
Eaton   V.   Southby,   Willes  131.     358, 

363. 
Eaves  v.  Estes,  10  Kan.  314,  15  Am. 

Rep.  345.     21,  28,  107,  414,  418. 
Estabrook    v.    Hughes,    8    Neb.    496. 

230. 
Eberts   v.    Fisher,    54    Mich.    294,    20 

N.  W.  80.     534. 
Ecke  v.  Fetzer,  65  Wis,  55,  26  N.  W. 

266.     527,  532. 
Eddy  V.  Hall,   5  Colo.  576.     66,  623. 
Edge  V.  Pemberton,  12  M.  &  W.  187. 

661. 
Edinburgh  W.   Co.   v.   Hay,   Peterson 

304.     568. 
Edler  v.  Hasche,  67  Wis.  653,  31   N. 

W.  57.     73,  594,  617. 


TUB    BOTTOM    PAGES.] 

Edmundson   v.   Brie,    136    Mass.    189. 

652. 
Edwards  v.   Derrickson,   28   N.   J.   L. 

39,  56,  29  N.  J.  L.  468.     6,  28,  430. 
Edwards  v.  Eveler,  84  Mo.  App.  405. 

628. 
Edwards    v.    Ilarben,    2    Term.    587. 

512. 
Edwards  v.  Perkins,  7  Ore.  149.     340. 
Edwards  v.  Thompson,  85  Tenn.  720, 

4  S.  W.  913.     364. 
Edwards  v.  Van  Patten,  46  Kan.  509, 

26  Pac.   958.     530. 
Edwards  Co.   v.   Rank,   57   Neb.    323, 

77  N.  W.  765,  73  Am.  St.  R.  574. 

66,  425. 
Effinger    v.    Hall,    81    Va.    94.      524, 

657. 
Ege  V.  Kille,  84  Pa.  St.  333.     25,  80, 

657. 
E.  H.  Ogden  L.  Co.  v.  Busse,  92  App. 

Div.    143,    86    N.    Y.    Supp.    1098. 

594,  595. 
Ekstrom  v.  Hall,  90  Me.  186,  38  Atl. 

106.     413,  651. 
Eklridge,  -Re,   2   Bissell   362,   4    Nat. 

Bk.  Reg.  498.     465. 
Electric   T.   Co.  v.  Salford,   11   Exch. 

181.      569. 
Elevator   Co.   v.   Brown,    36   Ohio   St. 

660.     533. 
Elizabethtown    &    P.    R.    R.    Co.    v. 

Elizabethtown,  75  Ky.  233.     541. 
Elizabethtown  Coal  Co.  v.  Elizabeth- 
town,  13  Ky.  L.  R.  96.     32,  466. 
Ellett  v.  Tyler,  41  111.  449.     432. 

Elliott  V.  Wright,   30   Mo.  App.   217. 
472. 

Ellis  v.  Rock  I.  &  M.  C.  R.  R.  Co., 
125  111.  82,  17  N.  E.  62.     89. 

Ellis  V.  Wren,   84  Ky.   254,   1   S.  W. 
440.     55,  397. 

Ellison    V.    Dolbey,    3    Penneweill   45, 
49  Atl.  178.     346,  354. 

Ellison    V.    Salem    Min.    Co.,    43    111. 
App.    120.     32,  416,  421. 


TABLE  OF  CASES 


XXXVll 


[eefekexces  aee  to 

Ellithorpe  v.   Eeidesil,   71   Iowa   315, 

32  N.  W.  238.     340,  365. 
Ellsworth  V.  McDowell,  44  Neb.  707, 

62  N.  W.  1082.     619,  626. 
Elston  V.  Jury,  9  Mont,  Co.  92.     429, 

450. 
Elting  V.  Palen,  14  N.  Y.  Supp.  607. 

380,  459. 
Elwes  V.   Brigg  Gas    Co.,   33   Ch.   D. 

562,  55  L.  T.  E.  831.     83. 
Elwes  V.  Maw,  3  East    38,  2  Smith's 

Lead.  Cas.  239.    3,  14,  15,  126,  130, 

133,   134,   138,    148,    149,   158,   160, 

164,   166,   167,   168,   170,   172,    174, 

176,   177,   178,   189,   190,   273,   301, 

302,  303,  305. 
Emerson   v.    Shores,    95    Me.    237,    49 

Atl.  1051.     333,  377. 
Emerson    v.    "Western   U.    E.    E.   Co., 

75  111.  176.     89. 
Emery  v.  Fugina,  68  Wis.  505,.  32  N. 

W.  236.     340,  404. 
Emmerson  v.  Annison,   1   Mod.   89,   2 

Keb.  874.     668,  669. 
Empire  L.  Co.  v.  Riser,  91  Ga.  643, 

17  S.  E.  972.    464. 
Empson  v.  Soden,  4  B.  &  Ad.  655,  1 

N.  &  M.  720.     163,  197. 
Emrich  v.  Ireland,  55  :\Iiss.  390.     38. 
Endsley  v.  State,  76  Ind.  467.    659. 
English  V.  Foote,  16  Miss.  444.     381. 
Ensign    v.    Colburn,    11    Paigo    503. 

609. 
Equitable  Tr.   Co.   v.  Christ,  47  Fed. 

756,  1  Flippin  599,  21  Myers  Fed. 

Dec.   §   2720.     26,  456. 
Erdman   v.   Moore,   58   X.  J.   L.   445, 

33  Atl.  958.     29,  32,  33. 

Erickson  v.  Jones,  37  Minn.  459,  35 

N.  W.  267.     199,  210,  213. 
Erickson   v.   Patcrson,   47   Minn.   525, 

50  N.  W.  699.     362. 
Erskine  v.  Plummer,  7  Me.  447.     373. 
Eslick,  Ee,  4  Ch.  D.  503,  46  L.  J.  Q. 

B.  30,  30  Co.  Ct.  &  B.  72,  20  Eng. 

BeptS.   723.     494. 


THE    BOTTOM    PAGES.] 

Estabrook  v.  Hughes,  8  Neb.  496,  7 

Eep.  786.     259. 
Estate  of  Hinds,  5  Whart.  138.     94, 

95,  273. 
Esterley's  App.,  54  Pa.  St.  192.     10, 

432. 
Esty  V.  Currier,  98  Mass.  500.     397. 
Etowah    M.    Co.    v.    Wills    Mfg.    Co., 

121  Alt.  672,  25  So.  720.     527. 
Euraka  Mower  Co.,  Ee,  86  Hun  309, 

33  N.  Y.  Supp.  486,  67  N.  Y.  St. 

E.  200.     30,  466. 
Eureka   M.   Co.   v.   Ferry   County,   28 

Wash.  250,  68  Pac.  727.     562. 
Evans   v.    Davis,    10   Ch.    D.    747,    27 

Eng.  Eepts.   252.     9. 
Evans  v.  Evans,  2  Camp.  491.     635. 
Evans  v.  Hardy,  76  Ind.  527.     334. 
Evans  v.  Inglehart,  6  Md.  171.     334. 
Evans  v.  Kister,   92  Fed.   828,  35  C. 

C.  A.  28.    408. 
Evans  v.   Lamar,   21   Ala.   333.     365. 
Evans   v.   McLucas,   15   S.   C.   67,   13 

Eep.  126.     33,  102,  109,  151. 
Evans  v.  Miller,  58   Miss.  120.     662. 
Evans    v.    Eoberts,    5    B.    &    C.    829. 

337,   370,   371,  374. 
Evans  v.  Williamson,  17  Ch.  D.  696. 

351. 
Evoringham  v.  Braden,  58  Iowa  133, 

12  N.  W.  142.     345,  350. 
Ewing    V.    Eourke,    14    Ore.    514,    13 

Pac.   483.     613. 
Exchange    B.    Co.    v.    Schuchman    E. 

Co.,  103  Mo.  App.  24,  78  S.  W.  75. 

205,   223,  518. 
Exmouth,  Ee,  23  Ch.  D.  158.     322. 
Fahnestock    v,    Gilham,    77    111.    637. 

523,   621. 
Fairburn  v.  Eastwood,  6  M.  &  W.  670. 

210,  531. 
Fairis   v.   Walker,    1    Bail.    540.      21, 

44,  302. 
Farant  v.  Farant,  2  Wash.  L.  E.  137. 

19,   192. 
Farley    v.    Craig,    15    N.    J.    L.    191. 

657. 


XXXVlll 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Farley  v.  Sanson,  5  Ont.  L.  105,  40 
Can,   L.   J.   506,    24   Can.   Law   T. 
Occ.   N.  303.     528. 
Farmers    &  M.  Bk.  of  Georgetown  v. 

Cover,  1  Hay  &  Hnz.  177.     411. 
Farmers'  Bk.  v.  Morris,  79  Ky.  157. 

365. 
Farmers'  L.  &  Tr.  Co.  v.  Hendrick- 

Bon,   25  Barb.   484.     48,  52,  541. 
Farmers'  L.  &  T.  Co.  v.  Minneapolis 
Wks.,  35  Minn.  543,  29  N.  W.  349. 
21,  433. 
Farmers'  L.  &  T.  Co.  v.  Saint  J.  Ky. 
Co.,  3  Dill.  C.  C.  412.     48,  53,  489, 
541. 
Farnsworth  v.  "Western  U.  Co.,  6  N. 

Y.  Supp.  735.     414. 
Farnsworth  v.  Western  U.   T.  Co.,  3 

Silvernail  30.     104,   109,  417. 
Farrant  v.  Lee,  Amb.  105,  3  Ark.  723. 

608. 
Farrant  v.  Lovel,   3  Atk.   723,   Amb. 

105.     608. 
Farrant   v.    Thompson,    5   B.   &   Aid. 
826,  2  D.  &  K.  1.     70,  75,  547,  642, 
656. 
Farrar  v.  Chaufetete,  5  Den.  527.     31, 

313,  390,  402,  406,  416,  439,  445. 
Farrar  v.  Smith,  64  Me.  74.     460. 
Farrar   v.    Stackpole,   6    Me.    154,    19 
Am.  Dec.  201.     17,  18,  23,  50,  444, 
462,  464,  565. 
Farris  v.  State,  69  S.  W.  140.    669. 
Favorite   v.    Deardorff,    84   Ind.    555. 

335,  348,  349,  364. 
Favro  v.  State,  39  Tex.  Cr.  452,  46 

S.  W.  932.     11. 
Fay  V.  Muzzey,  13  Gray  53.     305. 
Fay  V.  Keddick,  31  Ind.  414.     95. 
Fechet    v.    Drake,    2    Ariz.    239,    12 

Pac.  694.     28,  36,  397. 
Feder  v.   Van  Winkle,   53  N.   J.   Eq. 
370,    33   Atl.    399,    51    Am.    St.    E. 
628.     29,  35,  60,  393. 
Feimster  v.   Johnson,   64   N.   C.   259. 

103. 
Felcher  v.  McMillan,  103  Mich.  494, 


61  N.  W.  791.     141,  146,  649,  650. 
Fells  V.  Read,  3  Ves.  Jr.  70.     324. 
Ferguson  v.  Miller,  1  Cow.  243.     329. 
Ferguson  v.   Paul,  22  Sc.  L.  R.  809. 

187,  223,  248. 
Ferguson  v.   Ray,   77   Pac.   600.     83. 
Ferguson  v.  Spear,  65  Me.  277.     114. 
Fernandez  v.  Soulie,   28  La.  An.   31. 

262. 
Ferris   v.    Quimby,    41    Mich.    202,    2 

N.  W.  9.     32,  418. 
Field  V.   Jackson,   Dick.   599.     603. 
Fifield  V.  Farmers'  Bk.,  47  111.  App. 

118.     32,  408. 
Fifield  V.  Farmers'  Nat.  Bk.,  148  111. 

163,  35  N.  E.  802,  39  Am.  St.  Rep. 

166.     32,  393,  486,  490,  521,  620. 
Fifield  V.  Maine  C.  R.  R.  Co.,  62  Me. 

77.     546. 
Fifty  Associates  v.  Howland,  11  Met. 

99.      211. 
Finkelmeier  v.  Bates,   92   N.   Y.   172, 

48  N.  Y.   Super.  433.     530,  533. 
Finn  v.  Providence  W.  Co.,  99  Pa.  St. 

631.     380. 
Fiuney  v.  Grice,  10  Ch.  D.  13,  48  L. 

J.  Ch.  247.     476. 
Finney  v.  Saint  Louis,   39  Mo.   177. 

207,  260. 
Finney  v.  Watkins,  13  Mo.  291.     123, 

142,  648. 
Firebaugh  v.  Divan,  207  111,  287,  69 

N.  E.  924,  111  111.  App.  137.     349. 
First    Nat.    Bk.    v.    Adam,    138    111. 

482,  28  N.  E.  955.     122,  487,  501, 

549. 

First   Nat.   Bk.   v.   Elmore,   52   Iowa 
541,  3  N.  W.  547.     418,  432. 

First  Nat.  Bk.  of  Austin  v.  Jackson, 

40  S.  W.  833.     382. 
First  Nat.  Bk.  of  Braddock  v.  Hyer, 

46  W.  Va.  13,  32  S.  E.  1000.     66, 

399,  414. 
First    Nat.    Bk.    of    Clay    Center    v. 

Beegle,  52  Kan.  709,  35  Pac.  814, 

39  Am.  St.  R.  365.     66,  350. 


TABLE  OF  CASES. 


XXXIX 


[EEFEKENCES    ABE    TO 

First  Nat.  Bk.  of  Joliet  v.  Adam,  34 

111.   App.   159.     216. 
First  Parish  of  Sudbury  v.  Jones,  8 

Cush.  184.     86,  103,  111. 
First   Pres.   Soc.    v.   Bass,   68    N.   H. 

333,  44  Atl.  485.     326. 
Firth  V.  Eowe,  53  N.  J.  Eq.  520,  32 

Atl.  1064.     153. 
Firth    Co.    v.    South    C.    L.    Co.,    122 

Fed.  569,  118  Fed.  892.     489,  493. 
Fischer  v.  Johnson,  106  Iowa  181,  76 

N.  W.  658.     87,  97,  112,  346,  478. 
Fish  V.   New  York  P.   Co.,   29   N.   J. 

Eq.  16.     388,  392,  438,  439,  472. 
Fish    V.    Capwell,    18    E.    I.    667,    29 

Atl.  840.     335,  373,  376. 
Fisher  v.   Dixon,   12   CI.   &  Fin.   312, 

9   Jur.   883.     20,   26,  46,   160,   271, 

302,  306,  310,  455. 
Fisher  v.  Fisher,   1   Bradf.   Sur.   335. 

524. 
Fisher   v.   Forbes,    9   Vin.   Abr.    373. 

356. 
Fisher  v.  Patterson,   197  111.  414,  64 

N.  E.  353,  99  111.  App.  70,  34  Chi. 

Leg.  N.  153.     84,  486,  617,  621. 
Fisher  v.  Saffer,  1   E.   D.  Smith  611. 

102,   195,  545. 
Fisher    v.    Steward,    Smith    60.      82, 

329. 
Fisk  V.  Brayman,  21  R.  I.  195,  42  Atl. 

878.     397. 
Fisk  V.   People's  Bk.,   14   Colo.   App. 

21,   59   Pac.   63.      28,   56,   57,   387, 

393,  409,  521,  630. 
Fitch  V.  Burk,  38  Vt.  683.     372,  374. 
Fitch  V.  riowitt,  32  Ore.  396,  52  Pac. 

192.    426. 
Fitzgerald  v.  Anderson,  81  Wis.  341, 

51  N.  W.  554.     195,  200,  223,  622. 
Fitzgerald  v.  Atlanta  I.  Co.,  61  App. 

Div.  350,  70  N.  Y.  Supp.  552.     29, 

434. 
Fitzgerald    v.    Marshall,    1    Mod.    90. 

6r,9. 
Fitzherbert   v.    Shaw,    1    H.   Bl.    258. 

253,   254. 


THE   BOTTOM    PAGES.] 

Fitzpatrick    v.    Hoffman,    104    Mich. 

228,  62  N.  W.  349.     435. 
Flanary  v.  Kane,  46  S.  E.  312.     424. 
Flanders  v.  Cross,  10  Cush.  514.     567. 
Flanders  v.  Wood,  24  Wis.  572.     10. 
Flax  P.   W.   Co.   V.   Lynn,   147   Mass. 

31,  16  N.  E.  742.     561. 
Fleet  V.  Hegeman,  14  Wend.  42.     329. 
Fletcher   v.    Commowealth,   80   S.    W. 

1089.     686. 
Fletcher  v.   Evans,   140   Mass.   241,   2 

N.  E.  837,  1  K  Eng.  198.     105. 
Fletcher   v.   Herring,   112   Mass.   382. 

182. 
Fletcher   v.   Kelly,    83    Iowa   475,    55 

N.  W.  474,   21  L.  R.  A.   347.     32, 

403,  408,  486,  488. 
Fletcher  v.  Manning,  1  C.  &  K.  350. 

504. 
Floyd  V.  Eicks,  14  Ark.  286,  58  Am. 

Dec.  374.     99. 
Flud  V.   Flud,   Freem.  Ch.   210.     334, 

337. 
Fluharty    v.    Mills,    49    W.    Va.    446, 

38  S.  E.  521.     375. 
Flynn  v.  Wilkinson,  56  111.  App.  239. 

403. 
Flynt    V.    Conrad,    Phill.    L.    190,    93 

Am.  Dec.  588.     341. 
Fobes    V.    Shattuck,    22    Barb.    568. 

180. 
Foley   V.   Addenbrooke,    13   M.   &   W. 

174,    14    L.    J.    N.    S.    Exch.    169. 

155,  251. 

Foley  V.  Burnell,  1  Bro.  C.  C.  274,  4 
Bro.  C.  C.  319,  Cowp.  435.  319, 
322,  323. 

Folger  V.  Kenna,  24  La.  Ann.  43G. 
34,  625. 

Folsom  V.  Moore,  19  Me.  252.  201, 
449,  470,  472. 

Foot  V.  Dickinson,  2  Met.  611.  590, 
592. 

Foote  V.  Gooch,  96  N.  C.  265,  1  S. 
E.  529,  60  Am.  Rep.  411.  29,  407, 
412,  434. 


xi 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Forbes  v.   Mosquito   Club,   175   Mass. 

432,  56  N.  E.  615.     221,  432. 
Forbes  v.  Williams,  1  Jones's  L.  393. 

592, 
Forbush    v.    Lombard,    13    Met.    109. 

397. 
Ford  V.  Burleigh,  62  N.  H.  388.     112, 

513,  638. 
Ford  V.  Cobb,  20  N.  Y.  344.     31,  34, 

67,  103,  107,  313,  416,  483,  488. 
Fore  V.  Hibbard,  63  Ala.  410.     125, 

465. 
Forest  v.  Greenwich,  8  Ell.  &  Bl.  890. 

570,  572. 
Forsythe  v.  Price,  8  Watts  282.     354, 

363. 
Forsyth  Mfg.  Co.  v.  Castlen,  112  Ga. 

199,  37  S.  E.  485.     366. 
Fortescue  v.  Bowler,  55  N.  J.  Eq.  741, 

38  Atl.  445.     29,  87,  136,  154,  603. 
Fortman  v.  Goepper,  14  Ohio  St.  558. 

27,   28,   31,   36,   60,    107,   147,   470, 

471,  486. 
Foss   V.    Marr,    40    Neb.    559,    59    N. 

W.  122.     350. 
Foster,  Ex  parte,  13  Co.  Ct.  &  B.  Ca. 

467.     207. 
Foster  v.  Mabe,  4  Ala.  402,  37  Am. 

Dec.    749.      Ill,    514,    546. 
Foster  v.  Prentiss,  75  Me.  279.     400, 

401. 
Foster   v.   Eobinson,    6    Ohio    St.    90. 

353. 
Fowler    v.    Carr,    63    Mo.    App.    118. 

346. 
Fowler  v.  Fowler,  15  N.  Brans.  488. 

33,  57,  118. 
Fowler  v.  Mutual  L.  I.  Co.,  28  Hun 

195.     533. 
Fox  V.  Brissac,   15  Calif.   223.     162, 

337. 
Foxcraft  v.  Straw,  86  Me.  76,  29  Atl. 

950.     561. 
Foy  V.   Eeddiek,   31    Ind.   414.     115, 

622. 
Fraer  v.   Washington,   125   Fed.   280, 

60  C.  C.  A.  194.    532. 


Frances  v.  Ley,  Cro.  Jac.  367.     320, 

324. 
Frank  v.  Brunnemann,  8  W.  Va.  462. 

607. 
Frank   v.   Harrington,   36  Barb.   415. 

371. 
Frank  v.  Magee,  49  La.  A.  1250,  22 

So.    739,    50   La.   A.    1066,    23   So. 

939.     435,  457. 
Fraukland  v.  Moulton,  5  Wis.  1.    411, 

412,  415,  418,  485. 
Franks    v.    Cravens,    6    W.    Va.    185. 

615,  617. 
Fratt    V.    Whittier,    58    Cal.    126,    41 

Am.  E.  251,  21  Am.  Law  Eeg.  49, 

24  Alb.  Law  J.  314,  8  Pac.  C.  L. 

J.  149.     28,  379,  389,  433,  440,  448, 

466. 
Freake's  Set.,  [1902]  1  Ch.  97,  71  L. 

J.  Ch.  20,  85  L.  T.  E.  454,  50  W.  E. 

237.     11. 
Frear  v.  Hardenbergh,  5  Johns.  272. 

79,   219,  515. 
Frederick  v.  Devol,  15  Ind.  357.     516. 
Free  v.   Stuart,   39   Neb.   220,   57   N. 

W.  991.     200,  207,  209. 
Freeland    v.    Southworth,    24    Wend. 

191.     450. 
Freeman   v.   Dawson,   110   U.   S.   264, 

4  S.  Ct.  94.     122,  544. 
Freeman   v.   Leonard,   99   N.   C.   274, 

6  S.  E.  259.     112. 
Freeman  v.  Lynch,  8  Neb.  192.    5,  29, 

32,  63,  537. 
Freeman  v.  McLennan,  26  Kan.  151. 

99. 
Freeman   v.   Eosher,   18   L.   J.   Q.   B. 

340.     549. 
Freeman  v.  Underwood,  66   Me.   229. 

642. 
French   v.   Freeman,   43  Vt.   93.      70, 

460. 
French  v.  Mayor,  16  How.  Prac.  220, 

29  Barb.  363.     9,  244. 
French  v.  Prescott,  61  N.  H.  27.     398. 
Fresno   Bk.   v.   Husted,   49   Pac.   195. 

104,  426,  646. 


TABLE  OF  CASES. 


xli 


[REFERENCES    ABE    TO 

Frey-Sheekler   Co.    v.    Iowa   Br.    Co., 

104  Iowa  494,  73  N.  W.  1051.     105. 
Friedlander   v.   Eyder,    30    Neb.    783, 

47  N.  W.  83,  9  L.  R.  A.  700.     22, 

195,  200,  210,  482,  518,  545. 
Freidly    v.    Giddings,    119    Fed.    438. 

537. 
Frink  v.  Stewart,  94  N.  C.  484.     602. 
Frost  V.  Eender,  65  Ga.  15.     341,  342. 
Fry  V.  Ford,  38  Ark.  246.     359. 
Fry  V.  Miller,  45  Pa.  St.  441.     372. 
Fryatt  v.  Sullivan  Co.,  5  Hill  116,  7 

Hill  529.     415,  485,  486. 
Fulkerson   v.    Taylor,    46    S.    E.    309. 

424. 
Fullam  V.  Stearns,   30  Vt.  443.     22, 

36,  437,  438,  441,  543. 
Fuller   V.   Brownell,  48   Neb.   145,   67 

N.  W.  6.    145. 
Fuller    V.    Tabor,    39    Me.    519.      95, 

110. 
Fuller- Warren  Co.  v.  Harter,  110  Wis. 

80,  85  N.  W.  698,  53  L.  R.  A.  603, 

84  Am.  St.  R.  867.     33,  408. 
Fullington   v.   Goodwin,    57    Vt.    641. 

63,  458. 
Fulton   V.   Norton,   64   Me.   410.     64, 

458. 
Funk  V.  Brigaldi,  4  Daly  359.    28,  31, 

452. 
Furbush  v.  Chappell,  105  Pa.  St.  187, 

17  Rep.  726,  14  Wkly.  N.  Cas.  347. 

555. 
Furrh  v.  Winston,  66  Tex.  521,  1   S. 

W.  527.     62,  118. 
Gaddio  v.   Commonwealth,   25   Ky.   L. 

R.  1.''.85,  78  S.  W.  162.     677. 
GafTield  v.  Hapgood,  17  Pick.  192,  28 

Am.  Dec.  290.     189,  198,  199. 

Gafford  v.  Stearns,  51  Ala.  434.     371. 

Gage  V.  Rogers,   1    Strobh.   Eq.   376. 
350. 

Galbroath  v.  Davidson,  25  Ark.  490. 

44,  431. 
Gale  V.  Ward,  14  Mass.  352,  7  Am. 

Dec.  223.     22,  435,  442,  543. 


THE    BOTTOM    PAGES.] 

Gallagher    v.    Shipley,    24    Md.    427. 

180,  182,  183. 
Galveston  E.  Co.  v.  Perkins,  80  Tex. 

62,  15  S.  W.  633.     383. 
Galveston  R.  R.  v.  Cowdrey,  78  U.  S. 

459.      406. 
Gam  V.  Cordrey,  53  Atl.  334.     341. 
Gannon  v.  Peterson,   193  111.  372,  62 

N.  E.  210.     606. 
Garanflo   v.    Cooley,    33   Kan.    137,    5 

Pac.  766.     341. 
Garbutt  v.  Watson,  5  B.  &  Aid.  613. 

517. 
Gardiner   v.    Parker,    18    Gr.   Ch.    26. 

169,  187,  188,  213. 
Gardiner  M.  Co.  v.  Heald,  5  Me.  381. 

376. 
Gardner  v.  Finley,  19  Barb.  317.     70, 

391,  406,  412,  629. 
Gardner  v.   Heartt,   3  Den.   234.     74, 

596. 
Gardner  v.   Lanford,   86   Ala.   508,   5 

So.   879.     345. 
Gardner   v.    Peckham,   13   R.    I.    102. 

646. 
Gardner  v.  Perry,  39  Can.  L.  J.  670, 

23  Can.  Law  T.,  Oec.  N.  295.     184, 

305,  357. 
Gardner    v.    Samuels,    116    Calif.    84, 

47  Pac.  935.     527. 
Gardner  v.  Watson,  18  111.  App.  386. 

533. 
Garing  v.  Hunt,  27  Ont.  149.     429. 
Gamer    v.    Mahoney,    115    Iowa    356, 

88  N.  W.  828.     374. 

Garrison  v.  Webb,  107  Ala.  499,  18 
So.  297.     142. 

Garth  v.  Caldwell,  72  Mo.  622.     370. 

Garth    v.    Cotton,    1   Vcs.   Sr.    528,    3 

Ark.    751,   1    Dick.    183.      608,   613, 

614. 

Garvcn  v.  TToguo,  14  Wkly.  Cin.  L. 
B.  17.5,  45  Oiiio  St.  289.  29,  62, 
410,  442,  484,  485,  486,  488. 

Gary  v.  Burguiercs,  12  La.  An.  227, 
388,  439. 


xlii 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Gasco  V.  Marshall,  7  U.  C.  Q.  B.  193. 

64,  70,  382,  632. 
Gaskoll's  Set.  Est.,  Ee,  [1894]   1  Ch. 

485,  63  L.  J.  Ch.  243,  70  L.  T.  K. 

554,  51  W.  E.  219,  8  Eepts.  67.     10, 

524. 
Gaston  v.  Marengo  I.  Co.,  36  So.  738. 

365. 
Gates  I.  Wks.  v.  Cohen,  7  Colo.  App. 

341,  43  Pac.  667.     480. 
Gaty  V.  Casey,  15  111.  189.     432. 
Gauggel  V.  Ainley,  83  111.  App,  582. 

146,  147,  216,  255. 
Gaule    V.    Bilyeau,    25    Pa.    St.    521. 

432. 
Gay  V.  Warren,   115  Ga.   733,  42   S. 

E.  86.    314,  316. 
Gaylor    v.    Harding,    37    Conn.    508. 

441. 
Gear  v.  Bamum,  37  Conn,  229.     397. 
Geirke  v.   Schwartz,   45   N.   Y.  Supp. 

928,   20  Misc.   361.     46,   84,  647. 
General   Electric   Co.   v.    Transit   Co., 

57  N.  J.  Eq.  460,  42  Atl.  101.     29, 

32,  82,  417. 

Gentry  v.   Bowser,   2   Tex.   Civ.  App. 

388,  21  S.  W.  569.     67,  539. 
Georges    C.    Co.    v.    Detmold,    1    Md. 

Ch.  371.    601. 
Georgetown  W.  Co,  v.  Fidelity  T,  Co., 

78  S.  W.  113.     411, 
George   Weber   Brew.    Co.,   Ee,    Ohio 

Prob.  193.     29. 
Gerbert  v.  Trustees,  59  N.  J.  L,  160, 

35  Atl,  1121.     255. 
Gerke   v.    Purcell,    25    Ohio    St,    229. 

398,  559. 
German  Sav.  Soc.  v,  Weber,  16  Wash. 

95,  47  Pac.   224,  38  L.  E.  A.   267. 

33,  36,  105,  107. 

Getchell  v.  Allen,  34  Iowa  559.  408. 
Gett  V.  McManus,  47  Calif.  56.  245. 
Gibbons    v.    Dillingham,    10    Ark.    9. 

339,  340,  631. 
Gibbon's    Case,    Foster's   C.    L.    107. 

676,  677. 
Gibbs  V.  Esty,  15  Gray  587.     110, 


THE   BOTTOM    PAGES.] 

Gibson    v.    Brockway,    8    N,    H,   465. 

397. 
Gibson  v.  Hammersmith  &c.  Ey,  Co,, 

2    Drew   &   Sm.   603,   32   L.   J,   Ch, 

337,  9  Jur,  N.  S.  221,  11  W,  E,  299, 

8  L.  T.  N.  S.  43.     4,  123,  126,  134, 

185,  199. 
Gibson  v.  Smith,  2  Atk.  182,  Barnard 

Ch.  497,     603,  604. 
Gibson  v.  Vaughn,  2  Bail.  389.     630. 
Giddings   v.   Freedley,   128   Fed.   355, 

47,  539. 
Gift'ord  V.   Yarborough,   5  Bing.   163, 

K.  B.  3  B.  &  C,  91,     82. 
Gilbert  v.  Smith,  18  N.  B.  211.     528. 
Gilchrist  v.  Assessor  for  Lanarkshire, 

25  Sess.  Ca.  4th  Ser.  589,  35  Scot. 

L,  Eep.  663.     561,  573. 
Giles  V.  Simonds,  15  Gray  441,     374. 
Giles  V.  Stevens,   13  Gray   146.     332. 
Gilkerson  v.  Brown,  61  111.  486.     557. 
Gill   V.   DeArmant,   90   Mich.   425,   51 

N.  W.  527.     81,  620. 
Gill  V,  Weston,  110  Pa.  St.  305,  1  Atl. 

917,   110   Pa.   St.   312,   1   Atl.   921, 

71,  391,  403,  502,  643. 
Gillet   V,    Mason,    7    John,    16.      327, 

329, 
Gillett  V,  Balcom,  6  Barb.  370,     344, 

347, 
Gilliam  v.  Bird,  30  N.  C,  280,  49  Am. 

Dec.  379.     394,  659. 
Gillitt  V.  Truax,  27  Minn.  528,  8  N, 

W,  767.     368. 
Gilloek  V.  People,  171  111.  307,  49  N. 

E.  712.     677. 
Oilman  v.  Wills,  66  Me.  273.     348. 
Glasdir  Copper   Mines,    [1904]    1   Ch. 

819,   73  L.  S.  Ch.  461,  11   Manson 

Bankr.  224.     210. 
Glass   V.    Blazer,    91    Mo.    App.    564. 

365. 
Glass  V.  Coleman,   14  Wash.   855,   45 

Pac,  310.     259. 
Glegg,  Ex  parte,  19  Ch.  D.  7,  15  Co, 

Ct.  &  B.  Ca.  240,  51  L.  J.  Ch.  367, 

50  L.  S.  Ch.  711.     207,  226. 


TABLE  OF  CASES. 


xliii 


[REFERENCES    ARE   TO 

Glidden   v,   Bennett,   43   N.    H.    306. 

274,  284,  454. 
Globe  Marble  Co.  v.  Quinn,  76  N.  Y. 

23,  22  Am.  Rep.  259.     60,  402. 
Gocio   V.   Day,   51   Ark.   46,   9   S.   W. 

433.     191,   523. 
Godard  v.  Gould,  14  Barb.  662.     483. 
Goddard    v.   Bolster,    6    Me.   427,    20 

Am.  Dec.  320.     31,  63,  86,  458,  629. 
Goddard  v.  Chase,  7  Mass.  432.     305, 

449. 
Goddard  v.  Winchell,  86  Iowa  71.     83. 
Godfrey  v.  Brown,  86  111.  454.     364. 
Goedeke    v.    Baker,    28    S.    W.    1039. 

191. 
Goepper    v.    Kinsinger,    39    Ohio    St. 

429.     96. 
Goff  V.  Harris,  5  Man.  &  G.  573.    404. 
Goff  V.  Kitts,  15  Wend.  550.     329. 
Goflf   V.   O'Connor,    16    111.    421.      31, 

72,   102,  423. 
Goldie  v.Hewson,  35  N.  B.  349.    486. 
Goldschmid    v.    Starring,     5     Mackey 

582.     396. 
Goldville  Mfg.  Co.,  Ee,  118  Fed.  892, 

122  Fed.  569.     33,  492. 
Gooderham  v.  Denholm,   18  U.  C.  Q. 

B.    203.      390,    393,   413,    436,   442, 

455. 

Goodeson  v.  Gallatin,  Dick.  455.     599. 
Goodin  v.  Elleardsville  Hall  Ass'n,  5 

Mo.  App.   289.     iii,   1,   29,  35,  425, 

429. 
Gooding  v.  Eiley,  50  N.  H.  400.     67, 

488. 

Gooding  v.  Shea,  103  Mass.  360.  594, 
597,  630. 

Goodman  v.  Hannibal  &  St.  Jo.  E.  E. 
Co.,  45  Mo.  33,  100  Am.  Dec.  336. 
103,  203,  660. 

Goodrich  v.  .Jones,  2  Hill  142,  62, 
454,  457,  459. 

Goodwin  v.  Perkins,  1.34  Calif.  564,  66 
Pac.  793.     21.3,  386. 

Goodwin   v.   Smith,   49  Kan,   351,  31 


THE   BOTTOM    PAGES.] 

Pac.  153,  17  L.  E.  A.  284,  33  Am, 

St.  E.  373.     346. 
Goodyear  v.   Vosburg,   57  Barb.   243, 

39   How.   Pr.   377.      373,   376. 
Gordon  v.  Harper,  7  Term.  11.     547. 
Gordon  v.  Lowther,  75  N.  C.  193.  606, 

613. 
Gordon  v.   Miller,   28  Ind.  App.   612, 

136,   140,   141,   142,   144,   151,   217, 

422,  521, 
Gore  V.  Jenness,  19  Me.  53,     71. 
Gorley,  Ex  parte,  13  W.  E.  60,  11  L. 

T.  N.  S.  319,   10  Jur.  N.  S.   1085, 

34  L.  J.  N.  S.  Bank.  1.     124,  236. 
Gorman    v.    Bellamy,    82    N.    C.    496. 

526, 
Gorton  v,  Falkner,  4  Term  565.     549, 

551. 
Goss  V.  Helbing,  77  Cal.  190,  19  Pac, 

277,     429. 
Gossett    V.     Drydale,    48     Mo.    App. 

430.      353. 
Gough  V.  Wood,   [1894]   1  Q.  B.  713, 

63   L.   J.   Q.   B.   564,    70   L.   T,   E, 

297,  42  W,  E.  469,  9  E.  509.     77, 

111,  420,  421. 
Gould,  Ex  parte,  13  Q.  B.  D.  454,  51 

L.  T.  E.  368,  16  Co.  Ct.  &  B.  549,  1 

Morrill  B.  168.     211,  226. 
Gowcr  V.  Grosvenor,  Barnard  Ch,  54, 

5  Mad.  337.     322. 

Gower  v.  Levison,  Barnard  Ch.  54,  5 
Mad.   337.     322. 

Graemo  v.  Cullen,  23  Gratt,  266,    407, 

Grai   v,   Fricdlander,   33   La.   A.   188. 
532, 

Graff  V.  Fitch,  58  111,  373.     365,  366, 
372. 

Graham    v.    Connersville    &c.    R.    R. 
Co.,  36  Ind.  463,   10  Am.  Eep.  56. 

88, 

Graham    v.    Kwart,    11    Exch,    326,    1 

H.  &  N.  550.     328. 
Graham    v.   Roark,    23   Ark.    19.      92, 

99,   340,  396. 


xliv 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  TUB  BOTTOM  PAGES.] 


Grand    I.    Bk.    v.    Koehlcr,    57    Neb. 

649,  78  N.  W.  265.     395. 
Grand   Island   Co.   v.   Frey,    25   Neb. 

66,  40  N.  W.  599.     85. 
Grand  Lodge  v.  Knox,  27  Mo.   315. 

36,  147,  645. 
Grandona  v.  Lovdal,  78  Cal.  611,  21 

Pac.   366.     101. 
Grand  T.  Ey.  Co.  v.  Eastern  T.  Bk., 

16  L.  Can.  173.     48,  541. 
Grant   v.    Oxford   Loc.   Bd.,   L.   R.   4 

Q.  B.  9.     568,  571. 
Grant  v.  Wilson,  17  U.  C.  Q.  B.  144. 

63,   539. 
Grantham  v.  Hawley,  Hob.  132.     351, 

357. 
Grass  v.  Austin,   7  U.   C.  App.   511. 

367. 
Graton     &     K.     Co.     v.     Woodworth- 
Mason  Co.,  69  N.  H.   177,   38  Atl. 
790.     30,   36,  426. 
Graves  v.  Pierce,  53  Mo.  423.     426, 

437,  441,  442. 
Graves    v.    Weld,    5    B.    &    Ad.    105. 

334,  338. 
Gray  v.  Baldwin,  8  Blackf.  164.    609. 
Gray  v.  Cornwall,  16  Ky.  L.  R.  228, 

26  S.  W.  1018.     532. 
Gray  v.   Holdship,    17   S.  &  E.   413, 
17  Am.  Dec.  680.     25,  63,  72,  425, 
426. 
Gray  v.  McLennan,  3  Man.  337.     147, 
157,   195,   205,   224,   227,   233,   492, 
518,  528,  534,  549,  607, 
Gray   v.    Oyler,    2    Bush.    256.      220, 

221,  223. 
Gray  v.  Worst,   129   Mo.   122,   31   S. 

W.  585.     346,  347,  359. 
Great    W.    Mfg.    Co.    v.    Hunter,    15 

Neb.   32,   16  N.  W.   759.     426. 
Great  W.  Ey.  Co.  v.  Bain,  15  U.  C. 

C,  P.  207.     462,  467. 
Green    v.    Armstrong,    1    Den.    550. 

374. 
Green  v.  Biddle,   8  Wheat.   81.     79, 
80. 


Green  v.  Chicago,  E.  I.  &  P.  R.  R. 
Co.,  8  Kan.  App.  611,  56  Pac.  136. 
26,  63,  424,  618. 
Green  v.  Gresham,  21  Tex.  Civ.  App. 

601,  53  S.  W.  382.     108,  117. 
Green  v.  Hammock,  13  Ky.  L.  R.  145, 

16  S.  W.  357.     116. 

Green  v.  Keen,  4  Md.  98.     601,  602. 

Green   v.   Phillips,   26   Gratt.   752,   21 

Am.   Rep.   323.     28,   387,  392,   537. 

Green  Bay  C.  Co.  v.  Hemtt,  66  Wis. 

461,  29  N.  W.  237.     398. 
Green   B.   Lumb.    Co.    v.    Ireland,    77 
Iowa  636,  42  N.  W.  461.     116,  479. 
Greene  v.   Cole,   2  Saund.   252.     127, 

591,  592. 
Greene  v.  Maiden,  10  Pick.  500.     286. 
Greenebaum    v.     Taylor,     102     Calif. 

624,  36  Pac.  957.     95,   646,  657. 
Greenly  v.  Hall,  3  Harring.  9.     591. 
Greenwood   v.    Murdock,    9   Gray   20. 

397. 
Gregg  V.  Boyd,  69  Hun.  588,  23  N. 
Y.  Supp.  918,  53  N.  Y.  St.  R.  386. 
359. 
Gregg  V.  State,  55  Ala.  116.     669. 
Gregg  V.  Union  Pac.  R.  Co.,  48  Mo. 

App.  494.     116. 
Gregg  V.  Wells,  2  Per.  &  D.  296,  10 

Ad.  &  E.  90.     518. 
Gregory  v.  Rosenkrans,   72  Wis.  220, 

39  N.  W.  378.     345. 
Gresham  v.  Taylor,  51  Ala.  505.     36, 

434. 
Greve  v.  First  D.  St.  P.  &  P.  R.  R. 
Co.,  26  Minn.  66,  1  N.  W.  816.     90. 
Grewar  v.  Alloway,  3  Tenn.  Ch.  584. 

10,  30. 
Grey    v.    Cuthbertson,    2    Chitty's    R. 
482,  4  Dougl.  351.     533. 


Greye's    Case,    Owen    20,    Cro.    Eliz. 

372.     329. 
Grier    v.    Queen,    4    Can.    Exch.    168. 

526. 
Griffin  v.   Allen,   2  Clint.  N.  Y.  Dig. 

1415.     67,  479. 


TABLE  OF  CASES. 


xlv 


[REFERENCES    ARE    TO 

Griffin  v.  Bixby,  12  N.  H.  454.     99, 

100. 
Griffin   v.   Jansen,   19  Ky.   L.   R.    19, 

39  S.  W.  43.     436. 
Griffin    v.    Marine    Co.,    52    111.    130. 

532. 
Griffin  v.  Kansdell,  71  Ind.  440.     144, 

145,  195,  198,  518,  651. 
Griffiths    V.    Puleston,    13    M.    &    W. 

358.     353. 
Griggs  V.   Stone,  51   N.  J.  Law  549, 

18  Atl.  1094.     11,  427, 
Grimes  v.  State,  77  Ga.  762.     677. 
Grimshawe  v.  Burnham,   25  U.  C.  Q. 

B.  147.     46,  63,  520,  540. 
Groff  V.  Levan,  16  Pa.  St.  179.     346. 
Grosvenor   v.   Bethcll,   93   Tenn.    577, 

26  S.  W.  1096.     464. 
Grosz   V.   Jackson,    6   Daly   463.      29, 

429. 
Grove  v.  Barclay,  12  Phila.  315.    400. 
Grover  v.   Howard,  31   Me.  546.     63, 

65. 
Grymes   v.   Bowerin,   6   Bing.   437,   4 

M.   &   P.   143,   8   L.   J.   C.   P.   140. 

194,  196. 
Gudgell  V.  Duvall,  27  Ky.  229.     191, 

523. 
Guernsey    v.    Phinizy,    113    Ga.    898, 

39  S.  E.  402,  84  Am.  St.  Rep.  270. 

62,  459. 
Guernsey   v.   Wilson,   134   Mass.  482. 

87,  393,  601. 
Guest  V.   East  Dean,  L.  R,   7  Q.  R. 

334.     582. 
Gulf,  C.  &  S.  Ry.  Co.  v.  Diinman,  35 

S.  W.  947,  33  S.  W.  1024,  85  Tox. 

176,    19    S.    W.    1073.      35,    36,   57, 

59,  145,  383. 
Gullman   v.   Sharp,   81    Hun.   462,   30 

N.  Y.  Supp.  1036.     82. 
Gunderson   v.   Kenndy,   104   HI.   App. 

117.     33,  381. 

Gunderson  v.  Swrtrtout,  104  Wis.  186, 
80  X.  W.  465,  76  Am.  St.  Rep.  860. 
30,  55,  407. 


THE   BOTTOM    PAGES.] 

Guthrie    v.    Guthrie,    78    S.    W.    474. 

191,  523. 
Guthrie    v.    Jones,    108    Mass.    191. 

122,   125,   141,   142,   201,   647,   650. 
Guthrie  v.  Weaver,   1   Mo.  App.  136. 

325,   625. 
Hacker   v.    Munroe,    176   111.   384,   52 

N.  E.  12,  61  111.  App.  420,  56  HI. 

App.   532.     28,   60,   401,   434,   620, 

624. 
Hackett    v,    Amsden,    57    Vt.    432,    1 

East.   R,   747.      30,   54,   540. 
Hackett    v.    Bennett,    12    N.    S.    W. 

Supr.  Ct.  327.     140,  145, 
Haussler  v.   Missouri  G.  Co.,  52   Mo, 

452.     426. 
Haflick   V.   Stober,   11   Ohio   St.   482, 

148,   170,   175,   193,   212,   227,   261, 

274,  284, 
Hagaman    v,    Neitzel,    15   Kan.    383. 

662, 
Hagan   v.    Varney,   147   111.   281,    35 

N.  E,  219.     523, 
Haggert   v.   Brampton,   28   Can.   174. 

46,  436,  443,  453,  455,  456, 
Haggerty  v,  McCanna,  25  N.  J.  Eq. 

48.     94, 
Haggin  v,  Clark,  51  Calif,  112.     657. 
Haigh   V.   Jagger,    3   Colly.    Ch.    231. 

603. 
Haines  v,  Welch,  L,  R.  4  C,  P.   91, 

332, 

Haley  v.  Hammerslcy,  3  DeG,  F.  &  J. 
587,  30  L.  J.  Ch.  771,  4  L.  T.  N. 
S.  269,  7  Jur.  N.  S.  765,  9  W,  R, 
562.     252,  465, 

Hall  V,  Benton,  69  Me.  346.     559. 

Hall  V,  Carney,  140  Mass.  131,  3  N. 
E.   14,     50,  541. 

Hall  V.  Durham,  117  Ind.  429,  20  N. 
E.  282.     346. 

Hall  V.  Law  T.  Soc,  22  Wash,  305,  60 
Pac.  64.3,  79  Am.  St.  Rep.  935. 
447,  448. 

Hall  V.  White,  6  C.  &  P.  136.    315. 


xlvi 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Hallcck  V.  Mixer,  10  Calif.  574.    625, 

627. 
Hallen   v.   Eunder,    3   Tyrwh.   959,    1 
Cr.   M.   &  R.    266,   3   L.   J.   N.   S. 
Ex.    260.      4,    122,    124,    513,    517, 
544,  638,  663. 
Halley    v.    Alloway,    78    Tcnn.    523, 

429. 
Hall    l\Ifg.    Co.    V.    Hazlett,    11    Ont. 

App.  749,  8  Ont.  465.     209. 
Halstead  v.  American  G.  Co.,  17  Pa. 

Super.  605.     214. 
Ham  V.  Kendall,  111  Mass.  297.     103. 
Hamblett  v.  Bliss,  55  Vt.  535.     348. 
Hambly  v.  Trott,  1  Cowp.  376.     597. 
Hamilton    v.    Austin,    36    Hun.    138. 

74,  162,  520. 
Hamilton  v.  Delhi  M.  Co.,  118  Calif. 

148,  50  Pac.  378.    425. 
Hamilton    v.    Ely,    4    Gill.    34.      601, 

602. 
Hamilton  v.  Huntley,  78  Ind.  521,  41 
Am.  R.  593.     22,  32,  208,  407,  408. 
Hamilton  v.  Johnston,  14  Scot.  Law 

Rep.  298.     87. 
Hamilton  v.  State,  94  Ga.  770,  21  S. 

E.  995.     366. 
Hamilton    v.    Stewart,    59    111.    330. 

625. 
Hamilton  G.  Co.,  Re,  32  Can.  L.  J. 

366.     560, 
Hamilton  L.  Co.  v.  Campbell,  5  Ont. 

371.     658. 
Hamilton  Mfg.  Co.  v.  Lowell,  69  N. 

E.  1080.     564. 
Hamlin  v.  Parsons,  12  Minn.  108,  90 

Am.  Dec,  284.  74,  617. 
Hammer  v.  Johnson,  44  111.  192.  432. 
Hammond  v.  Ireland,  Sty.  215.  659. 
Hammond  v.  Martin,  15  Tex.  Civ. 
App.  570,  40  S.  W.  347.  147,  545. 
Hampstead's  Case,  1  Salk.  220.  679. 
Hancock  v.  Caskcy,  S  S.  C.  282.  346. 
Hancock   v.    Jordan,    7    Ala.   448,   42 

Am.  Dec.  600.     444,  462. 
Handforth  v.  Jackson,  150  Mass.  149, 


22  N.  E.  634.     117,  150,  218,  478. 
Handy  v.  Aldrich,   168   Mass.   34,   46 

N.  E.  429.     533. 
Handy    v.    Carruthers,    25    Ont.    279. 

373. 
Hanoy  v.  Milliken,  2  Tex.  Ct.  of  App. 

Civ.  170.     546. 
Hangsterfer    v.     Shafer,     130     Mich. 

223,  89  N.  W.  735.     533. 
Hannibal    &    St.    Jo.    R.    R.    Co.    v. 
Crawford,  68  Mo.  80.     38,  62,  381. 
Hanrahan  v.  O'Reilly,  102  Mass.  201. 

142,  145. 
Hansen  v.   Dennison,   7  111.  App.   73. 

368. 
Hansen  v.   Meyer,   81   111.   321,     533. 
Hanson  v.  Gardiner,  7  Ves.  308.    272. 
Hanson   v.    News    Pub.    Co.,    97    Me. 

99,  53  Atl.  990.     142,  431. 
Harberger  v.  State,  4  Tex.  App.  26, 

30  Am.  Rep.  157.     670. 
Harbold  v.   Kuster,   44  Pa.   St.   394. 

341. 
Hardeman  v.  State,  16  Tex.  App.  1. 

366. 
Harder  v.  Plass,  57  Hun  540,  11  N. 

Y.  Supp.  226.     366. 
Hardesty  v.   Pyle,   15   Fed.   778.     50. 
Hare  v.  Horton,  5  B.  &  Ad.  715.    154, 

157,  466,  468. 
Harkey  v.  Cain,  69  Tex.  146,  6  S.  W. 

637.     4,  57,  472. 

Harkness   v.   Sears,    26   Ala.   496,   62 

Am.  Dec.  742.     138,  170,  389,  405. 

Harlan  v.  Harlan,  15  Pa.  St.  507,  20 

Pa.  St.  303,  53  Am.  Dec.  612.     68, 

444,  520,  618,  626,  627,  628. 

Harman  v.  Cummings,  43  Pa.  St,  322. 

11. 
Harmon    v.    Fisher,    9    111.    App.    22. 

344. 
Harmon  v.  Kline,  52  Ark.  251,  12  S, 

W.  496.     103,  478. 
Harmony  Bldg.   Assn.   v.  Berger,   99 
Pa.  St.   320,  14  Rep.   250,   39  Leg. 
Intel.    286,    12    Wkly.    Notes    Cas. 


TABLE  OF  CASES. 


xlvii 


[REFERENCES    ARE    TO 

181,  43  Pitts.  Leg.  J.   17,  26  Alb. 

Law  J.  203.     35,  435,  447,  450. 
Harms  v.  Jacobs,  158  111.  505,  41  N, 

E.  1071.     601. 
Harndon   v.   Stultz,    100   N.   W.   329. 

99. 
Harper  v.  Gaynor,  19  Vict.  675.     256. 
Harper   v.    Harper,   20   N.   Zea.    317. 

87. 
Harrell  v.  Miller,  35  Miss.  700.     374. 
Harriman  v.  Eockaway  B.  Co.,  5  Fed. 

461.     538. 
Harris  v.  Bannon,   78   Ky.  568.     74, 

617. 
Harris  v.  Carson,  7  Leigh  632.     353, 

354. 
Harris    v.    Frink,    49    N.    Y.    24,    10 

Am.  Eep.  318.     120. 
Harris    v.    Gillingham,    6    N.    H.    9. 

103. 
Harris   v.   Gregg,   17   App.   Div.   210, 

45  N.  Y.  Supp.  364.     354. 
Harris  v.  Hackley,  127  Mich.  46,  86 

S.  W.   389.     32,   36,   85,   414. 
Harris  v.   Haynes,    34   Vt.    220.      22, 

31,  387,  389,  437,  438,  630. 
Harris    v.    Hitt,    58    Mo.    App.    459. 

382. 
Harris  v.  Jones,  83  N.  C.  317.     367. 
Harris    v.    Kelly,    13    Atl.    523.      37, 

225,  545. 
Harris   v.    Malloch,    21    U.    C.    Q.   B. 

82.     71. 
Harris    v.    Powers,    57    Ala.    139,    68 

Ala.  409.     102,  103,  116,  651. 
ILirris   v.   Schultz,   64    Iowa   539,    21 

X.  W.  22.     429. 
Harris  v.  Scovel,  85  Mich.  32,  48  N. 

W.  173.     435. 
TL-irris  v.  State,  73  Oa.  41.     674. 
Harris  v.  Youngstown  B.  Co.,  90  Fed. 

322,  33  C.  C.  A.  69,  62  U.  S.  App. 

112.     407. 

Harrishnrgh    v.    Hope    Fire    Co.,    2 
Pearson  269.     46,  87. 

Harrisbiirg    Light    Co.    v.    Goodman, 


THE   BOTTOM    PAGES.] 

129  Pa.  St.   206,   19  Atl.  844.     26, 

57. 
Harrison  v.  Chomeley,  Cary  72.     358. 
Harrison   v.   Hoff,    102   N.   C.   126,   9 

S.  E.  638.     646. 
Harrison   v.   Homeopathic  Assn.,   136 

Pa.  St.  558,  19  Atl.  804.     429. 
Harrison  v.  Parker,  6  East  154.     113, 

635. 
Harrison  v.  Smith,   19  Nova  S.  516. 

188,   195,  200. 
Harrison's    Trusts,    28     Ch.     D.    220. 

265. 
Harrow   School  v.   Alderton,   2   B.   & 

P.  86.     590. 
Hart  V.  Benton-Bellefontaine  Ey.  Co., 

7  Mo.  App.  446.     546. 
Hart  V.  Globe  I.   Wks.,  37   Ohio  St. 

75.     432. 
Hart   V.   Hart,    117   Wis.   639,   94   N. 

W.  890.     523. 
Hart  V.  Sheldon,  34  Hun  38.     22,  32, 

38,  62,  388,  407,  442. 
Hart   L.    Co.   v.    Everett   L.    Co.,    20 

Wash.  71,  54  Pac.  767.     531. 
Harter   v.    Salford,    34   L.   J.    M.    C. 

206,  6  B.  &  S.  591.     577. 
Ilartnian    v.    Cummings,    43    Pa.    St. 

322.     426. 
Ilartwell    v.    Kelly,    117    Mass.    235. 

103,  216. 
Harvey  v.  Harvey,  2  Str.  1141.     301, 

308,  309. 
Harvey  v.  Million,  67   I  ml.  00.     341. 
Ilaskin   Wood   Co.    v.    Cleveland    Co., 

94  Va.  439,  26  S.  E.  878.     30,  430. 
Haslem   v.   Lockwood,   37   Conn.   500. 

179. 
Haslet t  v.  Burt,  18  C.  B.  893,  36  Eng. 

L.  &  Q.  276,  2  Jur.  N.  S.  974,  25 

L.  J.  C.  P.  295,   18  C.  B.   162,  25 

L.  J.  C.  P.  201.    9,  245. 
Ilaslett  V.  Gillespie,  95  Pa.   St.   37L 

10,  427,  463. 
Haslett  V.  Glenn,  7  TT:irr.  &  .Tohn.  17. 

352,  355. 


xlviii 


TABLE  OF  CASES. 


[KEFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Hasty   V.    Wheeler,    12   Me.   434.     9, 

525. 
Hatch  V.  Briar,  71  Me.  542.     397. 
Hathaway  v.  Davis,  32  Kan.  693,  5 

Pac.  29.    432. 
Hathaway  v.  Orien  I.  Co.,  11  N.  Y. 

Supp.   413.     470. 
Hathorn  v.  Eaton,  70  Me.  219.     350. 
Haven  v.  Adams,  90  Mass.  363.    412. 
Haven  v.  Emery,  33  N.  H.  66.     478, 

486. 
Havens  v.  Germania  I.  Co.,  123  Mo. 

403,  27  S.  W.  718,  45  Am.  St.  Eep. 
570.     37,  379,  472. 

Havens  v.  West  Side  L.   Co.,  17  N. 

Y.  Supp.  580,  44  N.  Y.  St.  E.  589. 

544. 
Hawes  v.  Favor,  161  111.  440,  43  N. 

E.  1076.     11,  233,  248. 
Hawes  v.  Lathrop,  38  Calif.  493.   398. 
Hawkins  v.  Hersey,   86  Me.   394,   30 

Atl.  14.     421. 
Haw^kins   v.   Skeggs,   10   Humph.    31. 

358. 
Haworth  v.  Wallace,  14  Pa.  St.  118. 

426. 
Hawtry  v.  Butlin,  L.  E.  8  Q.  B.  290, 

21  W.  E.  633,  42  L.  J.  Q.  B.  163, 

28  L.  T.  N.  S.  532,  5  Eng.  E.  241. 

404,  470,  491,  493,  494,  497,  499. 
Hay  v.  Tillyer,  14  Atl.  18.     146,  225. 
Hayden  v.  Burkemper,  101  Mo.  644, 

14   S.   W.    767,   40    Mo.   App.   346. 

344. 
Hayden  v.  Goppinger,   67  Iowa  106, 

24  N.  W.  743,  21  Eep.  44.     404. 
Hayes   v.    N.    Y.    Min.    Co.,    2    Colo. 

273.    406. 
Hayes   v.    Schultz,    68    N.    Y.    Supp. 

340,  33  Misc.  137.     255. 
Hayford  v.  Wentworth,  97  Me.  347, 

54  Atl.  940.     32,  60,  144,  185,  188, 

197, 
Hayles  v.   Pease,   68  L.   J.   Ch.   222. 

404. 
Hayne's  Case,  12  Co.  113.     325. 


Hays  v.  Doane,  11  N.  J.  Eq.  84.    197, 

449. 
Hazlehurst  L.  Co.  v.  Fay,  18  So.  485. 

486. 
Hazlewood  v.  Pennybacker,  50  S.  W. 

199.     526. 
Head,  Ee,  12  W.  E.  215,  9  L.  T.  N. 

S.  613.     509. 
Headrick   v.   Brattain,    63   Ind.    438. 

367. 
Heap  V.  Barton,  12  C.  B.  274,  16  Jur. 

891,  21  L.  J.  N.  S.  C.  P.  153,  10 

Eng.  L.  &  Eq.  499.     205,  253. 
Heard    v.   Fairbanks,    46    Mass.    111. 

364. 
Heath  v.  Haile,  45  S.  C.  642,  24  S. 

E.  300.     73,  407. 
Heathcote,  Ex  parte,  2  Mont.  Dea.  & 

DeG.  711,  6  Jur.  1001.    504,  505. 
Heaton   v.   Findlay,    12   Pa.    St.    304. 

63,  72,  423,  425,  618,  626. 
Heavilon  v.  Farmers  Bk.  81  Ind.  249. 

342,  346,  347. 
Heavilon   v.    Heavilon,    29   Ind.    509. 

341. 
Hecht  v.  Dettman,  56  Iowa  679,   10 

N.  W.  241,  41  Am.  E.  131,  20  Am. 

L.  Eeg.  615.     347,  350. 
Hecksher    v.    Sheaier,    1    Cent.    928. 

564. 
Hedderich  v.  Smith,  103  Ind.   203,  2 

N.  E.  315,  20  Am.  Law  Eeg.  21,  20 

Eep.   647.     199,   255,   260. 
Hedge's  Case,  1  Leach  Cr.  240.     21, 

54. 
Heermance  v.  Vernoy,  6  John.  5.   302, 

405,  439. 
Heffner    v.    Lewis,    73    Pa.    St.    302. 

140,  161,  198,  544. 
Heflin  v.  Bingham,  56  Ala.  566.    374. 
Heidegger  v.  Atlantic  M.  Co.,  16  Mo. 

App.  327.     430. 
Heidelbach  v.  Jacobi,   28   N.   J.  Eq. 

544.     408. 
Heighcg  v.  Dollarville  Co.,  113  Mich. 
518,  71   N.  W.  870.     650,  652. 


TABLE  OF  CASES. 


xlix 


[EEFERENCES    ARE    TO 

Hellawell  v.  Eastwood,  6  Exch.  295, 

20   L.   J.    Ex.    154.      31,    178,    442, 

443,  446,  549,  550,  553,  555,  580. 
Helm  V.  Gilroy,  20  Ore.  517,  26  Pac. 

851.     29,  444. 
Hemenway,   Ex  parte,   2   Lowell  496, 

Fed.  Gas.  No.  6346,  22  Meyers  Fed. 

Dec.  §  23.    146,  203,  207,  211. 
Hemenway  v.   Bassett,   13   Gray  378. 

71. 
Hemenway  v.  Cutler,  51  Me.  407.    63, 

65,  67,  69,  381. 
Henderson  v.  Ownby,  56  Tex.  647,  14 

Eep.  46.    59,  87. 
Hendy  v.  Dinkerhoff,  57  Calif.  3,  40 

Am.  Rep.  107,  23  Alb.  Law  J.  413,  6 

Pac.  C.  Law  J.  965.     35,  105,  225. 
Hendy  v.  Trinity  &  S.  E.  Co.,  24  A, 

&  E.  R.  R.  Ca.  286.     90. 
Henkle  v.  Dillon,  15  Ore.  610,  17  Pac. 

148.     30,  112,  400,  420,  434,  484. 
Hennessy   v.  Anstock,   19   Pa.   Super. 

644.     9. 
Henry  v.  Brown,  99  Ky.   13,  17  Ky. 

L.  R.  1329,  34  S.  W.  710.     523. 
Henry   v.   Von   Bradenstein,   12   Daly 

480.     29,  418. 
Henry  &  C.  Co.  v.  Fisherdick,  37  Neb. 

207,  55  N.  W.  643.     429. 
Henshaw,   Re,   75   N.   Y.   Supp.   1047, 

37  Misc.  536.     533. 
Hensley  v.  Brodie,  16  Ark.  511.     68, 

478,  483,  622. 
Hercules  I.  Wks.  v.  Hummer,  49  111, 

App.  598.     105. 
Hereford  v.  Pusch,  68  Pac.  547.     59, 

92,  378,  396. 
Herkimer  L.  Co.  v.  Johnson,  37  App. 

Div.  257,  55  N.  Y.  Supp.  924.     560. 
llerlakenden's   Case,  4   Co.   62a.      75, 

188,  190,  285,  300,  458. 
llerno  v.  Bcmbow,  4  Taunt.  764.    598. 
Herring   v.    Pollard,    4    Humph.    362. 

80. 

Horron   v.   Herron,   47   Ohio   St.   544, 
25  N.  E.  420,  9  L.  R.  A.  667.     360. 


THE    BOTTOM    PAGES.] 

Ilershberger  v.  Johnson,  37  Ore.  109, 

60  Pae.  838.     546. 
Hershey  v.   Metzgar,  90  Pa.  St.  217. 

66,   342,  364. 
Hertzberg  v.  Witte,  22  Tex.  Civ.  App. 

320,  54  S.  W.  921.     217,  255,  259, 

479. 
Hewitt    V.    General    E.    Co.,    164    111. 

420,  45  N.  E.  725,  61  111.  App.  168. 

136,  142,  143,  161. 
Hewitt   V.   Watertown   S.   E.    Co.,   65 

111.  App.  153.     136,  623. 
Hey  V.  Bruner,  61  Pa.  St.  87.     140, 

141,  245,  544. 
Heysham  v.  Dettre,  89  Pa.  St.  506,  7 

Wkly,    Notes    Gas.    207,    10    Pitts. 

Leg.  J.  14.     453. 
Heywood  v.  Tillson,  75  Me.  225.    112. 
H.  F.  Cady  L.  Co.  v.  Greater  A.  B. 

Co.,  93  N.  W.  961.     426. 
Hibernia   Nat.   Bk.   v.   Sarah  P.   Co., 

107  La  650,  31  So.  1031.    480,  518. 
Hickey   v.    Rutledge,   98   N.   W.   974, 

10  Det.  Leg.  N.  1101.    435. 
Higgins  V.  Kusterer,  41  Mich.  318,  2 

N.   W.   13,   32   Am.   Rep.   160.     29, 

338,  514. 
Higgins  V.  Eiddell,  12  Wis.  587.    223. 
Higgon  V.  Mortimer,  6  C.  &  P.  616. 

633,  642. 
Ilillborno  v.  Brown,  12  Me.  162.    483, 

650. 
Hill,  Re,    [1902]    1   Ch.   537,  807,   71 

L.  J.  Ch.  417,  86  L.  T.  R.  336,  50 

W.  R.  434.     322. 
Hill  V.  Bowers,  45  Kan.  592,  26  Pac. 

13.     426. 
Hill  V.  Bullock,   [1897]   2  Ch.  483,  66 

L.  .1.  Ch.  705,  77  L.  T.  240,  46  W. 

R.   84,    [1897]    2   Ch.   55,   66  L.   J. 

Ch.  454.     V.  34,  278. 
Hill   V.   DeRochemont,   48    N.   H.   87. 

180. 

1 1  ill  V.  Giles,  Cro.  Eliz.  818.     659. 
Hill   V.   Gwin,   51   Calif.   47.      71,   73. 
Hill  V.  Hill,  43  Pa.  St.  521.     659. 


1 


TABLE  OF  CASES. 


[KEFEKENCES    AKK    TO 

Hill   V.    ]\hind.y,    S9    Kj.    36,    11    Ky. 

L.  E.  248,  11  S.  W.  956,  4  Ia  R.  A. 

674.     26,  32,  46,  47,  379,  456. 
Hill  V.  National  Bk.,  97  U.  S.  450,  8 

Rep.  577.     31,  410. 
Hill  V.  Rosenfeld,  10  Ky.  L.  R.  496. 

28,   36. 
Hill   V.   Sewakl,   53   Pa.   St.   271,   91 

Am.  Dec.  209.     25,  31,  415. 
Hill  V.  Shoemaker,  8  D.  C.  305.     65, 

410. 
Hill  V.  Wentworth,   28  Vt.  428.     22, 

31,  60,  389,  437,  438,  441,  543. 
Hillebrand  v.  Nelson,  95  N.  W.  1068. 

21,  27,  29,  60,  436. 
Hilton  Lumb.  Co.  v.  Murray,  47  App. 

Div.  289,  62  N.  Y.  Supp.  35.     122, 

124,  432. 
Hinckley    v.    Baxter,    13    Allen    139. 

112,  650. 
Hinckley  I.  Co.  v.  James,  51  Vt.  240. 

407,  426. 
Hinds   Est.,    5    Whart.    138,    34    Am. 

Dec.  542.     94,  95,  273. 
Hine  v.   Morris,   3  Wkly.   Cin.  L.  B. 

515.     417. 
Hines  v.  Ament,  43  Mo.  298.    93,  111. 
Hines  v.  Good,  128  Calif.  38,  60  Pac. 

527.     626. 
Hinkle  v.   Hinkle,   69   Ind.   134.      53, 

435. 
Hinkley    Iron    Co.    v.   Black,    70    Me. 

473,    35    Am.    Rep.    346.      28,    381, 

384,  385. 
Hinton  v.  Walston,   115   N.   C.   7,   20 

S.  E.  164.     345,  361. 
Hintze  v.  Krabbenschmidt,  44  S.  W. 

38.     191. 
Hirsch  v.  Graves  Elevator  Co.,  53  N. 

Y.   Supp.   664,   24   Misc.   472.      33, 

483. 
Hirth  V.  Graham,  50  Ohio  St.  57,  33 

N.  E.  90.     374. 
Hisey  v.  Troutman,  84  Ind.  115.     341. 
Hislop  V.  Joss,  3  Ont.  L.  281.     407. 
Histe  V.  Buckley,  8  Ohio  C.  C.  470, 


TUB    BOTTOM    PAGES.] 

1  Ohio  Dee.  526,  4  Ohio  Circ.  Dec. 

490.     102,  110. 
Hitchcock    V.    Walford,   5    Scott    792, 

324. 
Hitchings,   Re,   4   Nat.   B.   Reg.   384. 

394,  436. 
Hitchman  v.  Walton,  4  M.  &  W.  409, 

8  -L.   J.   N.   S.   Ex.   31.      504,   535, 

593,  597,  635,  643,  644,  657. 
Hite  V.  Parks,  2  Tenn.  Ch.  373.     533. 
Hoag,  Re,  97  Fed.  543.     369. 
Hoagland  v.   Lowe,   39   Neb.   397,   58 

N.  W.  197.     408. 
Hobbs  V.   Weatherwax,   38   How.   Pr. 

388.     374. 
Hobson    V.    Gorringe,    [1897]     1    Ch. 

182,  66  L.  J.  Ch.  114,  75  L.  T.  R. 

609,  11  R.  511.     60,  389,  487. 
Hodgson   V.   Gascoigne,   5   B.   &  Aid. 

88.     361. 
Hoffman  v.  Armstrong,  46  Barb.  337, 

48  N.  Y.  201.     100. 
Hogan  V.  Manners,  23  Kan.  551.   404. 
Hoit    V.    Stratton    Mills,    564    N.    H. 

110.        65,   68. 
Holbrook  v.   Chamberlain,   116   Mass. 

155,   17  Am.  R.   146.     10,  20,   140, 
,    141,  233,  240,  241,  435. 
Holder  v.  Coates,   1   Moo.  &  M.   112. 

100. 
Holderman   v.    Miller,    102    Ind.    356, 

1  N.  E.  719.     67. 
Holland,  Re,  2  Haskell,  90,  Fed.  Cas. 

No.  6603.     407. 
Holland   v.   Hodgson,   L.   R.   7   C.   P. 

328,  26  L.  T.  N.  S.  709,  2  Eng.  R. 

655.     21,  31,  43,  61,  103,  122,  405, 

443,  445,  446,  492,  499,  555,  556. 
Holliday    v.    Marshall,    7    John.    211. 

528. 
Holly  V.  State,  54  Ala.  238.     668. 

Holly  Mfg.   Co.   V.   New   Chester  W. 

Co.,  48  Fed.  879,  53  Fed.  19.     33, 

479,  482. 
Holmberg  v.   Johnson,   45   Kan.   197, 

25  Pac.  575.     162,  338. 


TABLE  OF  CASES. 


li 


[kefkrexces  are  to 

Holmes  v.  Standard  Pub.  Co.,  55  Atl. 

1107.     127,  136,  146,  152,  217,  607. 
Holmes  v.   Tremper,  20  "John.  29,  11 

Am.  Dec.  238.     152,  159,  160,  169, 

172,  200,  378. 
Holroyd  v.   Marshall,   11   W.  E.   171. 

125. 
Holsman  v.  Abrams,  2  Duer.  435.   532 
Holt  V.  Holt,  57  Mo.  App.  272.    370.' 
Holt  County  Bk.   v.   Tootle,   25   Neb. 

408,  41  N.  W.  291.     384,  478,  489. 
Holton  V.  Bowman,  32  Minn.  191,  19 

N.  W.  734.     345. 
Homeopathic   Assn.   v.   Harrison,   120 

Pa.  St.  28,  13  Atl.  501.     429. 
Homestead    Land    Co.    v.   Becker,    96 

Wis.   206,   71   N.  W.   117.     30,   33, 

58,  388,  390,  393,  407,  472. 
Honeyman   v.    Thomas,    25    Ore.   539, 

36  Pac.  636.     29,  36,  144,  145,  431. 
Hook  V.  Eicheson,  115  111.  431,  5  N, 

E.  98.     424. 
Hooker  v.  Latham,  118  N.  C.  179,  23 

S.   E.   1004.     626. 
Hooper  v.  Broderick,  9  L.  J.  Ch.  N. 

S.  321.     607. 
Hooper  v.  Farnsworth,  128  Mass.  487. 

398,  565. 
Hooper  v.  Payne,  94  Ala.  223,  10  So. 

431.     360. 
Hooven  v.  John  Featherstone's  Sons, 

111  Fed.  81,  49  C.  C.  A.  29.     32, 

427. 
Hope  V.  Gumming,  10  U.  C.  C.  P.  118. 

555. 
Hope  I.  Co.  V.  Brolaskey,  35  Pa.  St. 

282.     217. 
Hopewell   Mills  v.   Taunton   Bk.,   150 

Mass.  519,   23  N.   E.   327,  6   L.   E. 

A.  249,  15  Am.  St.  Eep.  235.     29, 

36,  61,  440,  444,  455,  647. 
Hopkins   v.    Oilman,   47   Wis.   581,    3 

N.  W.  382.     9,  246,  526,  529,  530, 

532. 

Horn  V.  Baker,  9  East  215.     16,  506, 
507,   509. 


THE    BOTTOM    PAGES.] 

Horn   V.   Indianapolis   Nat.   Bk.,    125 

Ind.  381,  25  N.  E.  558,  9  L.  E.  A. 

676,  21  Am.  St.  Eep.  231.     32,  399, 

422,  472. 
Home  V.  Gambrell,  1  Tex.  Ct.  of  App. 

Civ.  558.     364. 
Home   V.   Smith,    105   N.    C.    322,   11 

S.    E.    373,    18   Am.   St.    Eep.    903. 

35,  378,  388,  392. 
Hornelle      v.      Enregistr,      2      Ledru 

Eollin  214.    -42. 
Horsfall  v.  Key,  2  Exch.   778,  17  L. 

J.  Ex.  266.     517. 
Horwitz,   Ee,   26   Vict.   500.     586. 
Hoskin  v.  Woodward,  45  Pa.  St.  42. 

72,  462. 
Hosking    v.    Phillips,    3    Exch.    168. 

595. 
Hoskins  v.   Tarranee,   5  Blackf.   417. 

670. 
Hosli    V.    Yokel,    57    Mo.    App.    622. 

371. 
Hostetter  v.  Auman,   119   Ind.   7,   20 

N.  E.  506.     374. 
HoSun    V.    Hitchcock,    9    Haw.    616. 

344. 
Houghtaling  v.  Houghtaling,  5  Barb. 

379.     640. 
Houghton    V.    Butler,    4    Term.    364. 

646. 
House  V.  House,  10  Paige  158,   2  N. 

Y.  Leg.  Obs.  206.     312,  313. 
Houston,  E.  &  W.  Ey.  Co.  v.  Adams, 

63  Tex.  200.     87. 

Houts  V.  Showalter,  10  Ohio  St.  126. 
34. 

Ilouzik  V.  Delaglise,  65  Wis.  494,  27 
N.  W.  171.     86. 

Hovey  v.  Smith,  1  Barb.  372.     313. 

Howard  v.  Easton,  7  John.  205.  515. 

Howard  v.  Fessenden,   14   Alien  128. 

94,    102,    103,    111,    112.    113,  115, 

19.5. 

Howe   V.   Batchclder,   49    N.   H.  204. 

374. 


lii 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO 

Howell  V.  Barnard,  32  111.  App.  120. 

36,  411,  435,  523,  624. 
Howell  V.  Listonville  R.  Co.,  13  Ont. 

476.     137,  ]57,  234,  550,  552. 
Howell   V.   Schenck,   24   N.  J.   L.   89. 

354,  360. 
Howe's  Cave  Assn.  v.  Houck,  66  Hun 

205,  21   N.  Y.  Supp.  40,  49  N.  Y. 

St.  E.  5.     152,  533. 
Hoyle  V.  Plattsburgli  &c.   R.   R.   Co., 

54  N.  Y.  314,  51  Barb.  45,  47  Barb. 

104,  13  Am.  Rep.  595.     21,  26,  47, 

50,  53,  541. 
Hubbard  v.  Bagshaw,  4  Sim.  326,  9 

L.  J.  Ch.  190.     504,  512. 
Hubbard  v.  Beckford,  1  Hag.  Consist. 

307.     293. 
Hubbard  v.  Berry,  10  Ind.  App.  594, 

38  N.  E.  77.     362. 
Hubbell  V.  East  Cambridge  Bk.,  132 

Mass.  447,   42  Am.   Rep.  446.     28, 

440,  441,  442. 
Hubbs  V.  Swabacker,  51  W.  Va.  438, 

41  S.  E.  464.     341. 
Huddersfield     Bkg.     Co.     v.     Lister, 

[1895]  2  Ch.  273,  64  L.  J.  Ch.  523, 

72  L.  T.  R.  703,  43  W.  R.  567,  12 

R.  331.     71,  392. 
Hudson   B.   Co.   v.   Patterson,   74   N. 

Y.  365.     558. 
Hudson's  Bay  Co.  v.   Macdonald,  44 

Man.  237.     394. 
Hudson  Tr.  Inst.  v.  Carr-Curran  Co., 

58  N.  J.  Eq.  59,  43  Atl.  418.     34. 
Huebschman    v.    McHenry,    29    Wis. 

655.     26,  59,  63,  86,  620. 
Huerstal   v.    Muir,    64    Calif.    450,    2 

Pae.  33.     360,  658. 

Huff   V.    McCaulay,    53   Pa.    St.    206. 

373. 
Hug   V.    Van    Burkleo,    58    Mo.    202. 

528,  529. 
Hughes   V.   Breeds,    2    C.   &   P.    159. 

517. 
Hughes  V.  Burriss,  85  Mo.  660.     607. 


THB   BOTTOM    PAGES.] 

Hughes  V.  Edisto  S.  Co.,  51  S.  C.  1, 

28  S.  E.  ^    138,  144,  651. 
Hughes  V.  Gordon,  1  Bligh  312.     354. 
Hughes  V.  Lanibertville  Light  Co.,  53 

N.  J.  Eq.  435,  32  Atl.  69.     29,  431. 
Hughes  V.  State,   103  Ind.  344,  2  N. 

E.  956.     674. 
Hughes  V.  Towers,  16  U.  C.  C.  P.  287. 

141,  142,  143,  144,  146,  544,  545. 
Hughes  V.  Vail,  57  Vt.  41.     562. 
Hull  V.  Alexander,  26  Iowa  571.    115. 
Hull  V.  London  Coun.,  [1901]  1  K.  B. 

580,  70  L.  J.  K.  B.  364,  84  L.  T. 

R.    160,   49   W.   Ry.    396,   65  J.   P. 

309.     676. 
Humiston  v.  Wheeler,  175  111.  514,  51 

N.  E.  893.     398. 
Humphrey    v.    Merritt,   51    Ind.    197. 

351. 
Humphreys   v.    Newman,   51    Me.   40. 

118,  393,  407,  537. 
Humphries  v.  Humphries,  3  Ired.  362. 

363. 
Hunt  V.  Bay  State  I.  Co.,  97  Mass. 

279.     103,  420,  478,  486. 
Hunt    V.    Bullock,    23    111.    320.      26, 

48,   53,   541. 
Hunt  V.  Missouri  P.  Ry.  Co.,  76  Mo. 

115.     88. 
Hunt   V.    Mullanphy,    1    Mo.    508,    14 

Am.  Dec.  300.     31,  60,  389,  437. 
Hunt  V.  Potter,  47  Mich.  197,  10  N. 

W.  198,  13  Rep.  176.     232. 
Hunter    v.    Blanchard,    18    111.    318. 

426. 
Hunter  v.  Burchett,  5  Ky.  L.  R.  770. 

66,  373. 
Hunter    v.    Commonwealth,    7    Gratt. 

641.     677. 
Hunter  v.  Jones,  3  Brewst.  370.     354, 

358. 

Huntley  v.  Russell,  13  Q.  B.  572,  13 
Jur.  837,  18  L.  J.  Q.  B.  239.  288, 
289,   291. 

Hurrey  v.  Bank,  1  N.  Zea.  L.  R.  C. 
A.  115.     393. 


TABLE  OF  CASES. 


liij 


[REFKEEN'CES  ABB  TO  THE  BOTTOM  PAGES.] 


Hurxthal    v.    Hurxthal,    45    W.    Va. 

584,  32  S.  E.  237.     420.^ 
Hussey,  Ke,  2  HaskeU  244^  Fed.  Cas. 

No.  6945.     363. 
Hussey  v.  Eyan,  64  Md.  42H,  2  Atl. 

729.     137,  208. 
Huston  V.  Qark,  162  Pa.  St.  435,  29 

Atl.  868,  3  Pa.  Dist.  2.     25,  26. 
Huston  V.  Skaggs,  7  Ky.  L.  E.   592. 

361,  658. 
Hutchings  v.  Lathrop,  8  Law  Eep.  82. 

406. 
Hutchins   v.  King,   1   Wall.   53.      71, 

72,  73,  645. 
Hutchins  v.   Masterson,  40   Tex.   551, 

26  Am.  Eep.  286.     33,  391,  515. 
Hutchins  v.  Shaw,  6  Cush.   58.     385. 
Hutchinson  v.  Ford,  9  Bush.  318,  15 

Am.  E.  711.     367. 
Hutchinson  v.  Kay,   23  Beav.  413,   3 

Jur.  N.  S.  652,  26  L.  J.  Ch.  457,  5 

W.  R.  341.     433,  442,  464. 
Hutchman's    App.    27    Pa.    St.    209. 

72,  75. 
Hutton  V.  Warren,   1   M.   &  W.   466, 

Tyr.  &  Gr.  646.     353. 
Hyatt    V.   Vincennes  Bk.,    113   U.   S. 

408,  5  S.  Ct.  573.     122,  546. 
Hylton  V.  Brown,  2  Wash.  C.  C.  165. 

79. 
Hyman    v.   Gordon,   Ohio    Prob.    189. 

33,  436. 

Ice  Co.  V.  Lone  Star  Works,  15  Tex. 

Civ.  App.  694,  41   S.  W.  835.     30, 

388,  488. 
Idal  V.  Jones,  2  Dev.  L.  162.     329. 
Iddings  V.  Nagle,  2  W.  &  S.  22.     354. 
Iden  V.  Sommers,  18  N.  Y.  Supp.  189. 

448. 

Illinois  Bk,  v.  Seattle  Ry.  Co.,  82  Fed. 
936,  27  C.  C.  A.  268,  48  U.  S.  App. 
744.     50. 

Illinois  C.  E.  E.  Co.  v.  Hoskins,  80 
Miss.  730,  32  So.  150,  92  Am.  St. 
R.  612.     88. 


Illinois  C.  E.  E.  Co.  v.  I^Blanc,  74 

IMiss.  650,  21  So.  760.    403,  658. 
Independent    S.    Dist.    of   W.    Pt.    v. 

Werner,  43  Iowa  643.     435. 
Indianapolis,    D.    &    W.    Ey.    Co.    v. 
First  Nat.  Bk.,  134  Ind.  127.     102. 
Ingalls  V.   Saint  Paul,  M.  &  M.  Ry. 
Co.,  39  Minn.  479,  40  N.  W.  524, 
12  Am.  St.  Rep.  676.     114. 
Ingersoll    v.    Barnes,    47    Mich.    104, 
■    10  N.  W.  127.    480,  652. 
Ingram  v.  Cowles,  150  Mass.  155,  23 

N.  E.  48.     561. 
Insurance   Co.   v.   Luce,    11    O.   C.   C. 

476.     379. 
Insurance  Co.  of  N.  A.  v.  Buekstaff, 

92  N.  AV.  755.    36,  139. 
Inverarity    v.    Stowell,    10    Ore.    261. 

407. 
Irish   B.   Soc.   v.   Mahony,    10   Ir,   R. 

L.  363.     392,  407,  434,  493. 
Irvin  V.  M.  O.,  St.  L.  &  C.  R.  R.  Co., 

94  111.  105.    564. 
Irvin  V.  Simonds,  11  N.  B.   (6  Allen) 

190.     533. 
Isenhoot    v.    Chamberlain,    59    Calif. 
630,    9    Pac.    C.   Law   J.    14.      220, 
478,  482. 
Isham  V.  Morgan,  9  Conn.   374.     35, 

393. 
Ivey  V.  McQueen,  17  Ala.  408.     640. 
Ivins   V.   Ackerson,   38   N.  J.   L.   220. 

103,  514,  515. 
Ivy    V.    Yancey,    129    Mo.    501,     31 

S.   W.   937.     407. 
Jackson    v.    Adams,    2    Bing.    N.    C. 

403.     326. 
Jackson  v.  Buel,  9  John,  298.     657. 
.Tackson  v.  Cator,  5  Ves.  688.     603. 
.Jackson    v.    Evans,    44    Mich.    510,    7 

N.  W.  79.     340,  372. 
Jackson  v.   Klinger,  67   N.  Y.   Supp. 

850,  33  Misc.  758.     199. 
.Tackson  v.  Loomis,  4  Cow.  168.     80. 
Jackson   v.   Ludeling,   99    U.   S.    513. 
78. 


liv 


TABLE  OF  CASES. 


[UEFERENCES  AKB  TO  THE  BOTTOM  PAGES.] 


Jackson  v.  IMay,  16  John.  184.  659. 
Jackson  v.  State,  11  O.  St.  104.  670. 
Jackson    ads.    Tiirrcll,    39    N.    J.    L. 

329.  L'9,  388,  407,  411,  595,  596. 
Jacksonville,  T.  &  K.  W.  Ry.  Co.  v. 
Adams,- 28  Fla.  631,  10  So.  465. 
90. 
Jacoby  v.  Johnson,  120  Fed.  487.  87. 
James  v.  Portman,  Owen  102.  352. 
Janney  v.  Goehringer,  52  Minn.  428, 

54  N.  W.  481.     528. 
Jareclii  v.  Philharmonic  Soc,  79  Pa. 
St.  403,   21   Am.  Rep.  78,   33   Leg. 
Intel.  101,  6  Pitts.  Leg.  J.   134,   2 
N.  Y.  Wkly.  Dig.  153.     429,  448. 
Jared  v.  Vanvleet,  13  III.  App.   334. 

652. 
Jarrett    v.    McDaniel,    32    Ark.    598. 

368. 
Jarvis  v.  Jarvis,   1  Hanson's  B.   Ca. 

199,  8  R.  361.     513. 
Jefferson  v.  Bishop  of  Durham,  1  B. 

&  P.  104.     599. 
Jefferys    v.    Smith,    1    Jac.    &    Walk. 

302.     272. 
Jenkins  v.  Gething,  2  John.  &  Hem. 

520.     186. 
Jenkins  v.  Lykes,   19  Fla.  148.     374, 

376,  435,  459,  633. 

Jenkins  v.  McCoy,  50  Mo.  348.     361. 

Jenkins    v.    McCurdy,    48    Wis.    628, 

4  N.  W.  807,  33  Am.  Rep.  841.     30, 

37,  435. 

Jenks  V.  Colwell,  66  Mich.  420,  33  N. 

W.  528.     36,  84. 
Jencks  v.  Smith,  1  N.  Y.  90.     67. 
Jenney  v.  Gray,  5  Ohio  St.  45.     360. 
Jenney   v.    Jackson,    6    111.    App.    32. 

388,  521,  602. 
Jennings  v.  Vahey,  183  Mass.  47,  66 
N.  E.  598,  97  Am.  St.  Rep.  409. 
450. 
Jerecke  Mfg.  Co.  v.  Struther,  14  O. 
C.  C.  400,  8  Ohio  Circ.  Dec.  5. 
426. 


Jermyn  v.  Hunter,  93  App.  Div.  175, 

87  N.  Y.  Supp.  546.     29,  486. 
Jeromo    v.    Ross,    7    John.    Ch.    315. 

601,  602,  614. 
Jessup   V.   Stone,   13   Wis.   466.     408. 
Jesus  Col.   V.  Bloom,   1   Ambl.   56,   3 

Atk.  264.     272,  613. 
Jewett    V.    Keenholts,    16   Barb.    193. 

347. 
Jewett  V.  Patridge,  12  Me.  243.     103, 

42L 
Jewett  V.  Whitney,  43  Me.  242.     63, 

65. 
J.  L.   Mott  I.  Wks.  V.  Reilly,   81   N. 
Y.  Supp.   323,   33  Misc.   833.     486. 
John  L.  Roper  L.  Co.,  93  N.  C.   22. 

60L 
John  0  'Brien  Boiler  Co.  v.  Haydock, 
59    Mo.    App.    653.      36,    217,    426, 
43L 
Johns   V.    Karaarad,    96    N.    W.    118. 

364. 
Johns  V.  Ware,   [1899]   1  Ch.  359,  68 
L.  J.  Ch.  155,  80  L.  T.  R.  112,  47 
W.  R.  202,  6  Manson's  Bankr.  Cas. 
38.     493. 
Johnson    v.    Barber,    10    111.    431,    50 

Am.  Dec.  416.     332. 
Johnson   v.   Bratton,    112    Mich.    319, 

70  N.  W.  1021.     73. 
Johnson   v.   Camp,   51  111.   219.     344, 

346. 
Johnson  v.  Cook,  96  Mo.  App.  442,  70 

S.  W.  526.     343. 
Jonhson  v.  Hunt,   11  Wend.  135.     9, 

54. 
Johnson  v.  Mehaflfey,  43  Pa.  St.  308, 

82  Am.  Dec.  568.     54,  455. 
.Johnson  v.  Moore,  28  Mich.  3.     376. 
Johnson   v.    Moshcr,    82   Iowa   29,   47 

N.  W.  996.     32,  60,  395. 
Johnson  v.   Patterson,   81   Tenn.  626. 

30. 
Johnson  v.  Rayner,  6  Gray  110.     397. 
Johnson  v.  Roberts,  102  111.  655.   565. 
Johnson  v.  State,  61  Ala.  9,  100  Ala. 


TABLE  OF  CASES. 


Iv 


[BEFEREXCES    AKE    TO 

55,  14  So.  637,  114  Ga.  790,  40  S. 

E.  807,  68  Ind.  43.     350,  668,  671. 
Johnson  v.  Tautlinger,  31  Iowa  500. 

341. 
Johnson  v.  Willingbby,   3  Tenn.  Cas. 

338.     87,   112,   113,   195,  640. 
Johnson  v.  Wiseman,  4  Met.  357,  S3 

Am.  Dec.  475.     378,  439,  448. 
John  Spry  L.  Co.  v.   Steam-barge  C. 

H.  Green,  76  Mich.  320,  43  N.  W. 

576.     639. 
Johnston   v.  Bates,   48   N.   Y.   Super. 

180.     531. 
Johnston   v.   Dobie,   Mor.   Diet.   5443. 

54,  455,  473,  477. 
Johnston  v.  Morrow,  60  Mo.  339.   407, 

461. 
Johnston    v.    Phila.    Mort.    Co.,    129 

Ala.    515,    30   So.    15,    87   Am.    St. 

Eep.  75.     61,  394,  515. 
Johnston  v.  Eoss,   22  App.  Div.  631, 

48  N.  Y.  Supp.  6.     652. 
Johnston  v.  Smith,  70  Ala.  108.     341, 

342,  344. 
.Johnston  v.  Swann,  3  Mad.  457.     475. 
John    T.    Dyer    Company's    App.,    21 

Pa.  Co.  442.     217,  561. 
John  Van  Eange  Co.  v.  Allen,  7  So. 

499.     383,   479. 

Joiner  v.  Adams,  114  Ga.  389,  40  S. 
E.  281.    53. 

Jollie  &  Broad's  Case,  2  Eolle  201. 
551. 

Jones  V.  Adams,  37  Ore.  473,  59  Pac. 
8H,  62  Pac.  116,  50  L.  E.  A.  388, 
82  Am.  St.  E«p.  766.     344. 

Jones  V.  Bull,  85  Tex.  136,  19  S.  W. 
1031,  90  Tex.  187,  37  S.  W.  1054. 
30,  33,  61,  388,  391,  392,  537,  542, 
618,  623. 

Jones   V.    Cooley,    106    Iowa    165,    76 

N.  W.  652.     478. 
Jones  V.  Costigan,  12  Wis.  677.     594. 
Jones  V.  Detroit  C.  Co.,  38  Mich.  92, 

31  Am.  Eep.  314.     413. 


THE    BOTTOM    PAGES.] 

Jones  V.   Flint,   10  Ad.   &   E.   753,   2 

P.  &  D.  594.     370,  371. 
Jones   V.    Gooday,    8    M.    &   W.    146. 

641. 
Jones  V.  Hill,  3  Lev.  268,  Carth.  224, 

1  Moore  100.     292,  598. 
Jones  V.  Hoard,  59  Ark.  42,  26  S.  W. 

193.     191,   530,   532. 
Jones  V.  Jones,  2  Dev.  Eq.  387.     350. 
Jones  V.  New  O.  &  S.  E.  E.  Co.,  70 

Ala.  227.     90. 
Jones  V.  Eamsey,  3  111.  App.  303.     32, 

619. 
Jones  V.  Shufflin,  45  W.  Va.  729,  31 

S.  E.  975.     284. 
Jones  V.  Thomas,  8  Blackf.  428.    345. 
Jones  V.   Timmons,   21   Ohio   St.   596. 

341. 
Jones  V.  Webster,  48  Ala.  109.     367. 
Jones  V.  Whitehead,  1  Pars.  Eq.  Ca. 

304.     591,  599,  601. 
Jordan  v.   Myres,   126  Calif.   565,   58 

Pac.  1061.     31,  426,  480. 
Joseph  Hall  Mfg.  Co.  v.  Hazlett,  11 

Ont.  App.  749,  8  Ont.  465.     209. 
Josslyn   V.    McCabe,    46   Wis.    591,    1 

N.  W.  174,  18  Am.  Law  Eeg.  711. 

141,  199,  200. 
.Julien  V.  Woodsmall,  82  Ind.  572.    83. 
Juugerman   v.   Bovee,    19   Calif.    354. 

219,  254,  258,  259. 
Justice  V.  Nequehoming  E.  E.  Co.,  87 

Pa.   St.   28,    35   Leg.   Intel.   314,   6 

Wkly.  Notes  Cas.  374.     25,  91,  659. 
Kaestner   v.    Day,    65   111.    App.   623. 

28,  107,  146. 
Kahinu  v.  Aea,  6  Haw.  68.    311. 
Kain  v.  Fisher,  6  N.  Y.  597.     334. 
Kammrath   v.   Kidd,   95   N.   W.    213. 

341. 
Kanoii   v.   Kaioipahia,   11    Haw.   326. 

657. 

Kansas  Cy.  v.   Morse,   105    Mo.    510, 
16  S.  W.  89.3.     380. 

Kansas  T.  Co.  v.  Electric  P.  Co.,  116 
Fed.  904.     143,  413. 


Ivi 


TABLE  OF  CASES. 


[references  are  to 

Karst  V.  Saint  P.,  S.  &  T.  F.  R.  R. 

Co.,  22  Minn.  118.     641. 
Kash  V.  Huncheon,  1  Ind.  App.  361, 

27  N.  E.  645.     532. 
Kausal  v.  Minnesota  F.  Ins.  Assn.,  31 

Minn.  17,  16  N.  W.  430.     106. 
Kay  V.  Hathaway,  21  Tex.  Civ.  App. 

466,  51  S.  W.  663.    218. 
Kearsey  v.  Carstairs,  2  B.  &  Ad.  716. 

527. 
Keating  Mach.  Co.  v.  Marshall  Power 

Co.,  74  Tex.  605,  12  S.  W.  489.     30, 

431. 
Keefe  v.  Furlong,  96  Wis.  219,  70  N. 

W.  1110.     66,  144,  217,  472  . 
Keefer  v.  Merrill,  6  U.  C.  App.  121. 

21,  30,  60,  402,  440,  442. 
Keeler  v.  Keeler,   31   N.  J.  Eq.   181, 

9  Rep.  184,   8  Am.  Law  Rec.  670. 

58,  388,  390,  391,  393,  441,  486. 
Keeney  v.  "Whitlock,  7  Ind.  App.  160, 

34  N.  E.  502.     69,  480. 
Keepers  of  Harrow  Sch.  v.  Alderton, 

2  B.  &  P.  86.     590. 
Kehlor   v.   Wilton,   99   111.   App.   228. 

513. 
Kekewich   v.   Marker,   3    Mac.    &    G. 

311.     611. 
Kelley  v.  Border  Cy.  Mills,  126  Mass. 

148.     427. 
Kelley  v.  Powlet,  Ambl.  605,  1  Dick. 

559.      475. 
Kelley  v.  Todd,  1  W.  Va.  197.     353, 

354. 
Kellogg  V.  Littell  &  S.  Co.,  1  Wash. 

407,  25  Pac.  461.     432. 
Kelly  V.  Austin,  46  111.  156,  92  Am. 

Dec.  293.     31,  445. 
Kelly  V.  Seward,  51  Vt.  436.     638. 
Kelly   V.   Webber,    11   Ir.    C.   L.    57. 

355,  363. 
Kelly  V.  Webster,   12   C.  B.   283,   16 

Jur.   838,   21   L.   J.   C.   P.   163,   10 

Eng.  L.  &  Eq.  517.     219,  515. 
Kelsey  v.  Durkee,  33  Barb.  410.    139, 
140,  232. 


THE    BOTTOM    PAGES.] 

Kendall  v.  Hathaway,  67  Vt.  122,  30 

Atl.  859.     22,  30,  418,  434,  436. 
Kendall  v.  Porter  L.  Co.,  69  Ark.  442, 

64  S.  W.  220.     376. 
Kendall  v.  Tracy,  64  Vt.  522,  24  Atl. 

1118.     407. 
Kendall  Mfg.  Co.  v.  Rundle,  78  Wis. 

150,  47  N.  W.   364.     72,   145,   146, 

424. 
Kenerson  v.   Colgan,   164   Mass.   166, 

41   N.  E.   122.     87,   191,   195,   385. 
Kennard  v.  Brough,  64  Ind.  23.     389, 

391. 
Kennedy  v.  Clayton,  29  Ark.  270.  622. 
Kennedy  v.  Commonwealth,  182  Mass. 

480,  65  N.  E.  828.     430. 
Kennedy  v.   Milwaukee  &  St.  P.  Ry. 

Co.,  22  Wis.  581.     90,  410. 
Kenney  v.   Matlack,   12   Atl.   589,   11 

Cent.  609.     143,   146,   220. 
Kent  V.  Brown,  59  N.  H.  236.     428. 
Kent  County  Soc.  v.   Ide,   128   Mich. 

423,  87  N.  W.  369.     639. 
Keogh  V.  Daniell,  12  Wis.  163.     165, 

166,  203,  211. 
Kerby  v.  Clapp,  15  App.  Div.  37,  44 

N.  Y.  Supp.  116.     450,  483. 
Kerr  v.   Hill,   27   W.   Va.   576.     341, 

370. 
Kerr  v.  Kingsbury,  39  Mich.  150,  33 

Am.  Rep.   362,   17  Am.  Law  Reg. 

638,   13  Am.  Law  Rev.   378.     109, 

205,  257,  261,  481. 
Kesler  v.  Cornelison,  98  N.  C.  383,  3 

S.  E.  839.     341. 
Keve   V.   Paxton,   26   N.   J.   Eq.    107. 

30,  403,  441,  521. 
Key   V.   Woolfolk,    6   Rob.   424.     63, 

436. 
Keyser  v.  Dist.  No.  8  in  Sunapee,  35 

N.  H.  477.     663. 
Keystone  I.  Co.  v.  Wilie,  6  Kan.  App. 

654,  49  Pae.  706.     464. 
Kidwell  V.  Kidwell,  84  Ind.  224.    339. 
Kiernan  v.  Heaton,  69  Iowa  136,  28 

N.  W.  478.     99. 


TABLE  OF  CASES. 


Ivii 


[REFERENCES    ARE    TO 

Kile  V.  Giebner,  114  Pa.  St,   381,   7 

Atl  154.     656. 
Kileen  v.  Kennedy,  90  Minn.  414,  97 

N.  W.  126.     374. 
Kimball   v.    Adamt,,    52   Wis.    554,    9 

N.  W.  170.     38,  92,  454. 
Kimball  v.  DarHng,  32  Wis.  675.   610. 
Kimball  v.   Grand   Lodge,   131   Mass. 

59,    11    Rep.    704.      125,    141,    154, 

404, 
Kimball    v.    Lohmas,    31    Calif.    154. 

627. 
Kimball  v.  Sattley,   55  Vt.   291,     66, 

67,  367. 
Kimpton   v.    Eve,    2   Ves.    &   B.    349. 

15,  126,  127,  604,  606,  608,  652. 
King,  Ex  parte,  1  Mont.  Dea.  &  DeG. 

119,  4  Jur.  510.     505,  511. 
King  V.  Bangs,  120  Mass.  514.     630, 

641. 
King    V.    Beauvais,    7    Can.    Cr.    494. 

671. 
King  V.  Bosserraan,  6  Pa.  Dist.  344. 

341. 
King  V.  Catlin,  1  Tyler,  355.     659. 
King  V.  Foscue,  91   N.  C,  116,     355, 
King  V,  Fowler,  14  Pick.  238,     361. 
King    V.    Gilson,    32    111.    348.      316, 

625. 
King  V.  Johnson,  7  Gray  239.     381. 
King    V.    Smith,    2    Hare    239.      610, 

6n. 

King  V,  Whittle,  73  Ga.  482,     355, 
King  V,  Wilcomb,  7  Barb,  263,     120, 

162,  193,  194,  205,  215,  478, 
King   V,   Wilson,   98   Va,   259,    35   S, 

E.  727,     533. 
Kingsbury    v.    Collins,    4    Bing.    202. 

338. 
Kingsley  v.  Holbrook,  45  N.  H.  313, 

SO  Am.  Dec.  17.3.     370,  374,  375. 
Kingsley  v.   McFarland,   82  Me.   231, 

19  Atl.  442,  17  Am.  St,  Rep.  473. 

386. 

Kinkead  v.  United  States,  150  U.  S. 
483,  14  S.  Ct.  172.     87. 


THE    BOTTOM    PAGES.] 

Kinlyside  v,  Thornton,  2  W.  Bl,  1111, 

598. 
Kinnear  v.  Moses,  32  Wash,  215,   73 

Pac,  380.     396, 
Ivinney  v,  Knoebel,  51  111.  112.     423. 
Kinsell  v.  Billings,  35  Iowa  154.     295, 

297. 
Kinsey  v.   Bailey,   9   Hun  452,   4   N. 

Y.  Wkly.  Dig.  282.     104,  418. 
Kinsman    v.    Kinsman,    1    Root    180. 

351. 
Kinver  v.  Stone,   1   Str.  678.     584. 
Kiplinger  v.  Green,  61  Mich.  340,  28 

N.  W.  121.     359. 
Kirch  V.  Davies,  55  Wis.  287,  UN. 

W.  689.     66,  467,  618. 
Kircher  v,   Schalk,   39   N.  J.   L,   335. 

74, 
Kirchman   v,   Lapp,   19   N.   Y,   Supp. 

831,  46  N.  Y,  St,  R.  687.     334,  395, 

446,  448,  520, 
Kirkeby  v.  Erickson,  90  Minn.  299,  96 

N.  W,  705.     373. 
Kirkpatrick  v.  Cornwall  St,  Ry.  Co., 

2  Ont.  Law  113.     26,  48,  463,  489, 

541,  546. 
Kirtley  v.  Dykes,  10  Ok.  16,  62  Pac, 

808.     361. 
Kirwan   v.    Latour,    1    Har.    &   John. 

289,  2  Am.  Dec.  519,     433, 
Kissam  v.  Barclay,  17  Abb,  Pr.  360, 

193,  194,  196. 
Kisterbock  v,  Lanning,  7  Atl,  596,  6 

Cent,  264.     393, 
Kisterbock  v.  Todd,  16  Wkly.  Notes 

Cas.  47.     35, 
Kittcry  v,  Portsmouth  Bridge,  78  Me, 

93,  2  Atl,  847.    558. 
Kittow   V,   Liskeard   Union,   44  L,   J. 

M.  C.  23,  9  Cox  Mag.  312.     582. 
Kittrcdge  v.  Woods,  3  N.  H,  503,  14 

Am.  Dec.  393.    459,  543. 
Kloess  V.  K;itt,  40   111.  App.  99.     26, 

55,  387,  395. 

Khiso   V.   Sparks,   10   Ind.   App.   444, 
36  N.  E.  914,  37  N.  E.  1047.     341. 


Iviii 


TABLE  OF  CASES. 


[REFEUENCES    AllE    TO    THE    BOTTOM    PAGES.] 


Knapp  V.  Jones,  38  111.  App.  489,  143 

111.  375,  32  N.  E.  382.     502,  521. 
Knevett  v.  Pool,  Cro.  Eliz.  463,  5  Co. 

85a.  361. 
Knickerbocker  Tr.  Co.  v.  Penn  Cord- 
age Co.,  58  Atl.  409,  62  N.  J.  Eq. 
624,  50  Atl.  459.  29,  61,  389,  391, 
393,  396,  434,  436,  439,  442,  471, 
595. 
Knight  V.  Bank,  15  Leg.  Int.  139,  3 

Phila.   138.     512. 
Knight  V.  Orchard,  92  Mo.  App.  466. 

532. 
Knivet  v.  Poole,  Cro.  Eliz.  463,  5  Co. 

85a.     361. 
Knotts  V.  Hydrick,  12  Eieh.  314.    375. 
Knowles  v.  Michel,  13  East  249.    663, 

664. 
Knowlton   v.   Johnson,    37    Mich.    47. 

486. 
Knox    V.    Brotherton,    14    N.    S.    W. 

Supr.  Ct.  185.     30,  167,  396. 
Knox  V.  Haralson,  2   Tenn.   Ch.  232. 

375. 
Knox   V.    Oswald,    21    111.   App.    105. 

348. 
Koenig  v.  Mueller,  39  Mo.  165.     426. 
Koons  V.   Lucas,   52   Iowa  177,  3  N. 

W.  84.     563. 
Korbe    v.    Barbour,    130    Mass.    255. 

Ill,  112,   117,   216,  651. 
Kribbs  v.  Alford,  120  N.  Y.  519,  24 
N.   E.   811,    31    N.   Y.   St.   E.   564. 
217. 
Krounse  v.  Eoss,  1  Cranch  C.  C.  368, 

192. 
Krueger  v.  Pierce,  37  Wis.  269.    539. 
Krug  V.  Davis,   101   Ind.   75.     99. 
Kuhlman  v.  Meier,  7   Mo.  App.   260. 

149,  217,  218,  231,  232. 
Kupp's  Est.,  2  Woodward  228.     339. 
Kutter  V.   Smith,   2  Wall.   491.     148, 

149,  191,  194,  210,  226,  523. 
Lacey    v.    Giboney,    36    Mo.    320,    88 

Am.  Dec.  145.     22,  140,  142,  144. 
Lackas  v.  Bahl,  43  Wis.  53.     394. 


Laerustine  Fertilizer  Co.  v.  Lake  G. 

Co.,  82  N.  Y.  476,  19  Hun  47.     82, 

87,   118,  486. 

Lady  Dacre  's  Case,  1  Lev.  58.     659. 

Laflin  v.  Griffiths,  35  Barb.  58.     21, 

64,  378,  392,  618,  619. 
LaGrill  v.  Mallard,  90  Calif.  373,  27 

Pac.   294.     429. 
Laidlaw  v.   Taylor,   2  Nova  S.  L.  E. 

155.     35,  127,  141,  143,  248,  260. 
Laino  v.  Beland,  26  Can.  419,  4  Que. 

Q.  B.  354.     408,  486. 
Laing  v.  Bishopwearmouth,  3  Q.  B.  D. 
299,  47  L.  J.  M.  C.  41,  28  Eng.  R. 
278.     577. 
Laing  v.  Ontario  L.  Co.,  46  U.  C.  Q. 

B.  114.     349,   368. 
Laird  v.  Eailroad,  62  N.  H.   254,  13 

Am.  St.  E.  564.     217,  638. 
Lake  Sup.  I.  Co.  v.  McCann,  86  Mich. 

106,  48  N.  W.  692.     146,  216. 
Lake  W.  L.  Co.  v.  Callvert,  73  Pac. 

1128.     90. 
Lamb,   Ee,    32    N.   Y.   Supp.    225,   65 

N.  Y.  St.  E.  460.    524. 
Lambard  v.  Pike,  55  Minn.  141.    429. 
Lambourn  y.  McLellan,   [1903]   2  Ch. 
268,  72  L.  J.  Ch.  617,  88  L.  T.  E. 
748,   51   W.   E.   594,    [1903]    1   Ch. 
806,  72  L.  J.  Ch.  400.     251. 
Lametti  v.  Anderson,  6  Cow.  302.  533. 
Lancashire    T.    Co.    v.    Overseers,    14 
Q.  B.  D.  267,  13  Q.  B.  D.  700.    570. 
Lancaster  v.  Eve,  5  C.  B.  N,  S.  717, 
28   L.  J.  C.   P.   235,   5  Jur.   N.  S. 
683.    31,  61,  95,  97,  645. 
Landell    v.    Harrison,    16    Phila.    85. 

537. 
Landenberger  v.  Bergcs,  15  Phila.  96, 

39  Leg.  Intel.  264.     146,  434. 
Landigan  v.  Mayer,   32   Ore.   245,  51 
Pac.  649,  67  Am.  St.  E.  521.     486. 
Landon  v.  Piatt,   34  Conn.   517.     19, 

481,  486,   514. 
Landon    v.    Schenectady    County,    24 
Hun  75.     205. 


TABLE  OF  CASES. 


lix 


[references  are  to 

Lane  v.  Dixon,  3  C.  B.  776,  11  Jur. 

89,  16  L.  J.  C.  P.  129.     623,  637. 
Lane  v.  Hitchcock,  14  John.  213.     74, 

596. 
Lane   v.    King,    8    Wend.    584.      344, 

345. 
Langdon  v.  Buchanan,  62  N.  H.  657. 

29,  388,  390,  391,  409,  444,  471. 
Lange   v.   Baranco,    32   La.   An.   697. 

659, 
Lange  v.  Pisch,  30  K  Y.  Supp.  220, 

9  N.  Y.  ]\Iisc.  475,  61  N.  Y.  St.  R. 

111.     85,  210. 
Langston  v.  State,  96  Ala.  44,  11  So. 

334.     28,  31,  60,  667. 
Lanigan    v.    Kille,    97    Pa.    St.    120. 

192,  222,  658. 
Lanpher  v.  Glenn,  37  Minn.  4,  33  N. 

W.  10.     398. 
Lanphere  v.  Lowe,  3  Neb.  131.     149, 

153,  161,  501. 
Lansdowne    v.    Lansdowne,    1    Madd. 

116.     614. 
Lansing  I.  Wks.  v.  Walker,  91  Alich. 

409,    51    N.   W.    1061,    30   Am.    St. 

Eep.  488.     70,  484. 
Lansing   Wks.   v.   Wilbur,    111    Alieh. 

413,  69  N.  W.  667.     32,  57,  521. 
Lapeno    v.    McCan,    28    La.    A.    749. 

543. 
Lapham   v.   Norton,   71   Me.   83.      32, 

382,  384,  386. 
Larquier  v.  White,  29  La.  Ann.  156. 

216. 
Larson   v.   Furlong,   63   Wis.   323,   23 

N.  W.  584.     86. 

LasHoll  V.  Reed,  6  Me.  222.    180,  181. 

Late  V.  McLean,  2  Nova  S.  Dec.  69. 
541. 

Latham    v.    Atwood,    Cro.    Car.    515. 
.'!37. 

Latham  v.  Blakcly,  70  N.  C.  368.     26, 
72,  423,  444,  516. 

Lathrop  v.  Blake,  23  N.  H.  46.     21, 
27,  378,  462. 


the  bottom  pages.] 

Latta  V.  Cambridge  Springs  Co.,   25 

Pa.   Co.   310.     25,  430. 
Lauchner  v.  Eex,  20  Pa.  St.  464.    341. 
Laughlin   v.   Lester,   4   N.   Y.   St.   R. 

852.     105. 
Launton  's  Case,  4  Leon.  1.     341. 
Lavenson   v.    Standard    Soap    Co.,    80 

CaUf.    245,    22    Pac.    184,    13    Am. 

St.  Rep.  247.     28,  73,  389,  392,  471, 

595. 
Lavery  v.  Purcell,  39  Ch.  D.  508,  57 

L.  J.  CTi.  570.     515. 
Lawrence  v.  Kemp,  1  Duer  363.     141, 

200,   448. 
Lawrence   v.    Knight,    11    Calif.    298. 

53L 
Lawson  v.  Patch,  5  Allen  586.     366, 

374. 
Lawson  v.   S.  T.  Barlow  Co.,  21   Ky. 

L.  R.  308,  51  S.  W.  314.     106,  546. 
Lawton  v.  Lawton,   3  Atk.   13.     134, 

138,   140,   148,   149,   150,   155,   159, 

160,   212,    269,   272,   273,   301,   302, 

303,  305,  587,  607,  615. 
Lawton   v.   Salmon,   1   H.   Bl.   259,   3 

Atk.  16.     24,  31,  134,  140,  159,  189, 

273,  301,  303,  310,  311,  422,  587. 
Lea  V.  Shakespeare,  10  Mont.  Co.  171. 

57,  436,  447,  448,  543. 
T^each  v.  Thomas,  7  C.  &  P.  327.     176, 

188,  189. 
Leader  v.   Homewood,  5  C.  B.  N.  S. 

546,   27  L.   J.   N.   S.   C.   P.   316,   4 

Jur.  N.  S.  1062.     199,  206. 

Leahy  v.  Reynolds,  4  Ky.  L.  R.  995. 
533. 

Leary  v.  Hutton,  12  N.  Y.  Supp.  476. 
532. 

Lcavitt  V.  Eastman,  77  Me.  117.    630. 
Ledoux  V.  LaBee,  83  Fed.  761.     567. 
Lcdyard  v.  Phillips,  47  Mich.  305,  11 
N.  W.  170.     344. 

Lee  V.  Gaskcll,  1  Q.  B.  D.  700,  45  L. 

J.  Q.  B.  540.     122,  373,  513,  517. 
Lee  V.  TTubschmidt  BIdg.  Co.,  55  N. 


Ix 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


J.  Eq.   623,  37  Atl.   769.     61,   388, 
390,  440. 
Lee    V.    Kendall,    Manning    19.     407, 

408. 
Lee  T,  King,  99  Ala.  246,  13  So.  506. 

426. 
Lee  V.  New  Orleans,  28  La.  A.  426. 

558. 
Lee   V.   Eisdon,    7    Taunt.    188.      122, 

124,   138,   190,   197,   635,   647,   663, 

667. 
Lefebvre  v.  Queen,  1  Can.  Exch.  121. 

380. 
Lefevre  v.  Detroit,  2  Mich.  586.     559. 
Lefler  v.  Forsberg,  1  App.  D.  C.  36. 

429. 
Legh   V.   Hewitt,   4   East   154.      180, 

182. 
Lehigh  C.  Co.  v.  Wilkes-Barre  &  E. 

E.  E.  Co.,  8  Luz.  Leg.  Eeg.  E.  540, 

187  Pa.  St.  145,  9  Luz.  Leg.  Eeg. 

E.  235,  41  Atl.  37.     480. 
Leidy  v.  Proctor,  97  Pa.  St.  486,  10 

Wkly  Notes  Cas.  426.     62,  63,  459. 
Leigh  V.  Taylor,  [1902]  A.  C.  157,  71 

L.  J.  Ch.  272,  86  L.  T.  E.  239,  50 

W.  E.  623,  [1901]  1  Ch.  523.     277, 

278. 
Leland  v.   Gassett,   17  Vt.  403,   411. 

106,   118,   170. 
Leman  v.  Best,  30  III.  App.  323.    144, 

147,  154,  199,  255,  647,  652. 
Lemar  v.   Miles,  4  Watts  330.     140, 

144,  232,  245,  544. 
Lent  V.  Curtis,  14  O.  Circ.  Dec.  592. 

530,  532. 
Leonard   v.   Boisvert,    10   Que.   S.    C. 

343.     486. 
Leonard  v.  Clough,  133  N.  Y.  292,  31 

N.  E.   93,   16  L.  E.  A.   305,  45   N. 

Y.  St.  E.  259,  14  N.  Y.  Supp.  339, 

37  N.  Y.  St.  E.  814.     55,  516. 

Leonard  v.  Medford,  85  Md.  666,  37 

Atl.  365.    373. 
Leonard  v.  Stickney,  131  Mass.  541. 

29,  35,  38,  75,  433,  468,  619. 


Leonard    v.    Willard,    23    Que.    C.    S. 

482.     483. 
Leslie  v.  Smith,  32  Mich.  64.     523. 
Lesser    v.    Eayner,    47    N.    Y.    Supp. 

1102,  21  Misc.  666.     246. 
Lessert    v.    Sieberling,    59    Neb.    309, 

80  N.  W.  100.    424. 
Letchman  Chetty  v.  Hassan  Kudus,  4 

Kyshe  675.     546. 
Levinski  v.  Williamson,   15  Tex.  Civ. 

App.  67,  38  S.  W.  376.     229. 
Levinstein    v.    Born,    18    Phila.    265. 

542. 
Lewis  V.  Christian,  40  Geo.  187.     608. 
Lewis  V.  Harris,  1  H.  Bl.  5.     550. 
Lewis  V.  Jones,  17  Pa.  St.  262.     180, 

182,  183. 
Lewis  V.  Lyman,  22  Pick.  442.     180. 
Lewis  V.  McNatt,  65  N.  C.  63.     333, 

336,    363. 
Lewis  V.  Ocean  P.  Co.,  125  N.  Y.  341, 

26  N.  E.  301,  34  N.  Y.  St.  E.  973, 

3  N.  Y.  Supp.  911.     152,  205,  221, 

223,   230,  651. 
Lewis   V.   Perry,   149   Mo.   257,   50   S. 

W.  821.     202,  261. 
Lewis  V.  Eosler,  16  W.  Va.  333.     8, 

63,  64. 
Lewis  V.  Seabury,  74  N.  Y.  409.    404. 
L'Hote  V.  Fulham,  51  La.  An.  780,  25 

So.  655.     197,  437,  448,  482. 
Liebe  v.  Nicolai,  30  Ore.  364,  48  Pac. 

172.     143,  241. 
Lieferman   v.   Osten,   167   111.   93,   47 

N.   E.   203.     398. 
Liford's   Case,    11    Co.   46b,    1    Eolle 

95.     45,  46,  75,  315,  333,  334,  374, 

375,  453,  633,  644. 
Lillie  V.  Dunbar,  62  Wis.  198,  22  N. 

W.  467.     375. 
Linahan  v.  Barr,  41   Conn.  471.     31, 

1.35. 
Lincoln  v.  Newcastle,  3  Ves.  Jr.  387, 

12  Ves.  Jr.  218.     322. 
Linden  Oil  Co.  v.  Jennings,  207  Pa. 

St.  524,  56  Atl.  1074.     91. 


TABLE  OF  CASES. 


Ixr 


[REFERENCES    ARE    TO 

Lindley  v.  Kelley,  42  Ind.  294.     364. 
Lindsay  v.  Winona  &  St.  P.  E.  E.  Co., 

29  Minn.  411,  13  N.  W.  191,  43  Am. 

Rep.  228.     361. 
Lingham    v.    Biggs,    1    B.    &    P.    82. 

508. 
Linscott  V.  Weeks,  72  Me.  506.     519, 

630. 
Lion  Ins.  Co.  v.  Wicker,  93  Tex.  397, 

55  S.  W.  741.     111. 
Lipsky   V.   Borgman,   52   Wis.   256,   9 

N.  W.  158,  38  Am.  Rep.  735.     30, 

36,  537. 
Little  V.  Willford,   31   Minn.  173,   17 

N.  W.  282.     114. 
Little  F.  W.  P.  Co.  v,  Hausdorf,  127 

Fed.  442.     210,  225. 
Little   V.    Co.    V.    Lambert,    15    Colo, 

App.  445,  62  Pac.  966.    545. 
Liu  Kong  V.  Keahialoa,  8  Kaw.  511. 

164. 
Livingston  v.  Reynolds,  26  Wend.  115. 

604,  609,  613. 
Livingston    v.    Sulzer,    19    Hun    375. 

139,  141,  256,  530,  532. 
Lloyd,  Ex  parte,  1  Mont.  &  Ayr.  494, 

3  Dea.  &  Chit.  765,  3  L.  J.  N.  S.  B. 

108.     109,  123,  138,  461,  505,  506. 
Lloyd  V.  Rosbee,  2  Camp.  N.  P.  453. 

590. 
Loan  V.  Gregg,  55  Mo.  App.  581.    21, 

35,  447. 
Lockeshan    v.    Miller,    16    Ky.    L.    R. 

55.     66,  376. 
Lockwood  V.  Lockwood,  3  Redf.  330. 

473. 
Loeb    V.    Richardson,    74    Ala.    311. 

350. 
Loescr   v.   Licbman.    137    N.   Y.   163, 

33  N.  E.  147,  50  N.  Y.  St.  R.  382, 

14  N.  Y.  Supp.  569.     228,  251,  601. 
Loftin  V.  Hines,  107  N.  C.  360,  12  S. 

E.  197.     367. 
Lombard!  v.  Shrrn,  14  Tex.  Civ.  App. 

540,  37  S.  W.  61?.,  971.     66,  349. 


THE    BOTTOM    PAGES.] 

London  &c.  L.  &  D.  Co.  v.  Drake,  C 

C.  B.  N.  S.  798,  5  Jur.  N.  S.  1407, 

28  L.  J.  C.  P.  297.     205,  208,  209, 

649. 
London  &  S.  A.  Co.  v.  DeBeers  ^Knea, 

[1895]   A.   C.  451,   64  L.  J.   P.   C. 

123,  72  L.  T.  R.  609,  11  R.  511.    9, 

232. 
London  L.  Co.  v.  Pulford,  8  Ont.  Pr. 

150.     198,  388,  393,  400,  406,  409, 

412. 
London  Ry.  Co.,  Re,  27  Ont.  App.  83. 

562,  563. 
Long  V.  Anderson,  62  Ind.  537.     520. 
Long  V.   Cockern,   128  III.   29,   21  N. 

E.  201,  29  111.  App.  304.     441,  522. 
Long  V.  Finger,  74  N.  C.  502.     386. 
Long  V.  Kee,  42  La.  Ann,  899,  8  So. 

610.     119,  168. 
Long  V.  State,  28  So.  775.     671. 
Long  V.  White,  42  Ohio  St.  59.     66, 

514. 
Longbottom   v.   Berry,   5    Q.   B,    123, 

39  L,  J.  N.  S.  Q.  B.  37,  10  B.  &  S, 

584,  22  L.  T.  N.  S.  385.     43,  387, 

389,   390,   391,  405,   435,   442,   444, 

446,  555. 
Long  I.  R.  R.  Co.,  Re,  6  N.  Y.  Supr. 

Ct.  R.  298.     88. 
Longstaflf    v.    Meagoe,    2   Ad.   &   Ell. 

167.    403,  647. 

Look  V.  Norton,  94  Me.  547,  48  Atl. 
117.     361,  645. 

Loomis    V.    Wilbur,    2    Harring.    281. 
591. 

Loose  V.  Scharff,   6  Pa.  Super.   153. 
341. 

Lord  V.  Detroit  Sav.  Bk.,  93  N.  W. 
1063.     395. 

Lord   V.  Wardle,   3  Bing.   N.  C.   680. 
315. 

Lord  Buckhurst's  Case,  1  Co.  1  Mo. 
488.     315,  317. 

Lord  Bute  v,  Grindall,  1   Term  343. 
567. 


Ixii 


TABLE  OF  CASES, 


[UEFEllENCIiS    AUK    TO    TUB    BOTTOM    PAGES.] 


Lord    of   the   IManor   of   Ilamstead's 

Case,  1  Salk.  220.    679. 
Lord  Petre  v.  Heneagc,  12  Mod.  520, 

1   Ld.  Raym.   728.     318,  321. 
Lord   Tamworth   v.    Lord   Ferrars,   6 

Ves.  419.     266,  606. 
Lothian  v.  Wood,  55  Calif.  159,  5  Pac. 

C.  Law  J.  732.     430. 
Loudon   V.   Warfiehl,    55    J.   J.    Mar. 

196.     603. 
Lougliran  v,   Eoss,  45   N.  Y.   792,   6 

Am.  Rep.  173.     254,  258,  259. 
Louisville  &  N.  E.  R.  Co.  v.   State, 

64  Tenn.  663.     566. 
Louisville  &  N.  A.  R.  R.  Co.  v.  State, 

25  Ind.  177.    566. 
Louisville  B.  A.  v.  Korb,  79  Ky.  190. 

408. 
Louisville,  N.  O.  &  T.  R.  R.  Co.  v. 

Dickson,  63   Miss.   380.     90. 
Loveridge  v.  Schultz.     188. 
Low  V.  Tandy,  70  Tex.  745,  8  S.  W. 

620.     539, 
Lowenberg  v.  Bernd,  47  Mo.  297.    92. 
Lower  v.  Winters,  7  Cow.  263.     219, 

515. 
Lowndes  v.  Dickerson,  24  Barb.  586. 

329, 
Lowther     v.      Caledonian     Ry.      Co,, 

[1892]  1  Ch.  73,  61  L.  J.  Ch.  108, 

66   L.   T.   R.    622,    40   W.   R.    208, 

[1891]   3  Ch.  443.     90. 
Lowther    v.    Cavendish,    1    Eden.    99. 

311. 
Loyd,  Ex  parte,  3  Dea.  &  Ch.  765,  1 

Mont.   &  Ayr,   494,   3  L,  J.   N.   S. 

Bank.  108.     123,  138. 
Lucaa  v.  Bishop,  83  Tenn.  165.     100. 
Luce   V,   Ames,   84   Me.   133,   24  Atl, 

770,     65,  70,  618,  620. 
Lushington    v.    Sewell,    1    Sim.    435. 

50,  477. 
Lusty,  Re,  60  L.  T.  R.  160,  6  Morrell 

Bank.  18,  37  W.  R.  304.     403,  493. 

Luttrell   V.   Knox   County,    89    Tenn. 
253,  14  S.  W.  802.    559, 


Luzerne   County    v.    Galland,    3    Luz. 

Leg.  Reg.  11.     566. 
Lyde  v.  Russell,  1  B.  &  Ad.  394.    198, 

199,  200,  649. 
Lyle  V.  Palmer,  42  Mich.  314,  3  N.  W. 

922.    30,  35. 
Lyle   v,    Shinnebarger,    17    Mo,   App. 

66.     366. 
Lyman  v.  Hale,  11  Conn.  177.     100. 
Lynde  v.  Eowe,  12  Allen  100.    412. 
Lyon  v.  Green  B,  &  M.  Ry,  Co.,  42 

Wis,  538,     90, 
Lyon  v,  London  Cy,  Bk.,  [1903]  2  K. 

B,  135,  72  L,  J.  K,  B,  465,  88  L. 

T.  R.  392,  51  W.  R.  400.     61,  447, 

452,  485. 
Maas  V.  Amana  Soc,  July  9,  '77,  Chi. 

Trib.  2,  16  Alb.  Law  J.  76.     83. 
Mabry  v.  Harp,  53  Kan.  398,  36  Pac. 

743,     364, 
Macclesfield  v.  Davis,  3  Ves.  &  Bea. 

16,     324. 
Macdonough   v.    Starbird,    105    Calif. 

15.     153. 
Mackie  v.  Smith,  5  La.  Ann.  717,  52 

Am.  Dec.  615.     34. 
Mackintosh   v.    Trotter,    3    M.    &   W. 

184,     122,  205,  259,  649. 
Maddox  v,  Goddard,  15  Me.  218,   629. 
Madigan  v.  McCarthy,  108  Mass.  376, 

11    Am,   Rep,    371.      86,    102,    110, 

195. 

Madison  v.  Madison,  206  111.  534,  69 
N.  E.  625.    30,  380. 

Madison  Av.   Ch.   v.   Baptist   Ch.,  41 
N.  Y.  Super.  369.     422. 

Maginnis   v.    Union    Oil    Co.,   47   La. 

Ann.  1489,  18  So.  459.     55,  60,  66, 

399,  467. 
Maguire  v.  Park,  140  Mass.  21,  .1  N. 

E.  750.    33,  441. 

Main    v.    Schwarzwaelder,    4    E.    D. 
Smith  273.    389. 

Makepeace,   Ex   parte,   31   N.  C,  91t 
122,  444,  559,  561, 


TABLE  OF  CASES. 


Ixiii 


[references  are  to 

Mallory  v.  Maryland  G.  Co.,  131  Fed. 

111.     467. 
Malmsbury  M.  Co.  v.  Tucker,  3  Vict. 

L.   R.   Law   213.     513,   533. 
Malone  v.  Marriott,  64  Ala.  486.   611. 
Malone  v.  State,  79  Tenn.  701.     87. 
Malott   V.   Price,   109   Ind.    22,   9   N. 

E.  718,  85  Ind.  266.     69,  104,  114, 

478,  480,  489. 
Mammoth  M.  Co.  v.  Juab  County,  10 

Utah  232,  37  Pac.  348.     558. 
Manchester  jNIills  v,  Eundlett,   23  N. 

H.  271.     54. 
Manchester,  S.  &  L.  Ey.  Co.  v.  Kings- 

ton-upon-Hull,    75    L.    T.    R.    127. 

571. 
Mann  v.  English,  38  U.  C.  Q.  B.  240. 

643. 
Mann  v.  Mann,  49  III.  App.  472.    407. 
Manners   v.   Johnson,    1    Ch.   D.   673. 

11. 
Manning  v.   Ogden,   70   Hun   399,   24 

N.  Y.  Supp.   70,  54  N.  Y.   St.  R. 

113.     447,  448. 
Mansfield  v.  Blackburne,  6  Bing.   N. 

C.  426,  8  Scott  720.     134,  140,  160, 

254,  258. 
Mant  V.  Collins.    31,  97. 
Mantooth  v.  Burke,  35  Ark.  540.     95, 

117,  478. 
Manufacturers'  Nat.  Bk.  v.  Rober,  19 

N.  Y.  Wkly.  Dig.  476.     389,  393. 
Manwaring  v.  .Jenison,  61  Mich.  117, 

27  N.  W.  899.     32,  66,  478. 
Maples  V.  Millon,  31  Conn.  598.     162, 

337. 
Marable    v.    Jordan,    5   Humph.    417. 

94,  194. 
March  v.  McKoy,  56  Calif.  85.    95. 
Marcy  v.   Darling,   8  Pick.   283.     95. 
Marker    v.    Kenrick,    13    C.    B.    188. 

598. 

Marker   v.    Marker,   9   Haro  1.     266, 
600. 

Marklo  v.  Ilouck,  19  U.  C.  Q.  B.  164. 
434. 


THE    BOTTOM    PAGES.] 

Markle  v.  Stackhouse,  65  Ark.  23,  44 

S.  W.  808.     28,  392. 
Marks  v.  Ryan,  63  CaUf.  107,  15  Rep. 

528,  10  Pac.  C.  Law  J.,  779.     195, 

255. 
Marquette,  H.  &  O.  R.  R.  Co.  v.  At- 
kinson, 44  Mich.  166,  6  N.  W.  230. 

620. 
iMarquis      of      Downshire      v.      Lady 

Sandys,  6  Ves.  107.     266,  606. 
Marsh  v.  McNider,   88  Iowa  390,  55 

N.  W.  469.     83. 
Marshall  v.  Bacheldor,  47  Kan.  442, 

28  Pac.  168.     22,  26,  104. 
Marshall   v.    Ferguson,    23   Calif.    65. 

370. 
JIarshall  v.  Green,  L.  R.  1  C.  P.  D. 

35,  45  L.  J.  C.  P.  153.     373,  514. 
Marshall  v.  Homer,  74  Pac.  368.    340. 
:\Iarshall    v.    Stewart,     80    Ind.    189. 

407,  423,  522. 
Marson  v.  Short,  2  Scott  243,  2  Bing. 

N.  C.  118.     517. 
Marston  v.   Stickney,   58   N.   H.   609. 

397. 
Martin  v.  Cope,  28  N.  Y.  180,  3  Abb. 

Ct.  App.  Dec.  182.    465. 

Martin  v.  Gillham,  7  Ad.  &  E.  540. 
661. 

Martin  v.  Knapp,  57  Iowa  336,  10 
N.  W.  721.     342,  344. 

Martin  v.  Roe,  7  Ell.  &  Bl.  237,  3  Jur. 
N.  S.  465,  26  L.  J.  Q.  B.  129,  40 
Eng.  L.  &  Eq.  68.  155,  194,  287, 
290,  294. 

Martin  v.  Thompson,  62  Calif.  618, 
120  U.  S.  376,  7  S.  Ct.  586.  361, 
628. 

:\rartyr  v.  Bradley,  9  Bing.  24,  1  L. 
J.  N.  S.  C.  P.  147,  2  Mo.  &  So.  25. 
166,  243. 

Marx  V.  Nelma,  95  Ala.  304,  10  So. 
551.     339. 

Maryland  v.  Northern  &c.  Ry.  Co.,  18 
Md.  193.     609,  610,  611. 


Ixiv 


TABLE  OF  CASES. 


[UKFEUENCES    ARE    TO 

Mascfield  v.  Eotana,  10  N,  Zea.  169. 

36,  92. 
Masiamab  v.   Pachak,   4  Kyshe  444. 

315. 
Mason  v.  Fenn,  13  111.  525.     12,  204, 

207,  237. 
Mason  v.  Lemmon,  4  O.  Dec.  322,  3 

Ohio  N.  P.  116.     338,  343. 
Mason  v.   Moyers,   2  Bob.  606.     353, 

354. 
Massachusetts  Nat.  Bk.  v.  Shinn,   18 

App.  Div.  276,  46  N.  Y.  Supp.  329, 

163  N.  Y.  360,  57  N.  E.  611.     210. 
Master  &c.  of  Clare  Hall  v.  Harding, 

6  Hare  273.     86. 
Masters  v.  Pollie,   2  Rolle   141,     99, 

100. 
Mather  v.  Fraser,  2  Kay  &  J.   536, 

2  Jur.  N.  S.  900,  25  L.  J.  Ch.  361, 

4  W.  R.  387,  27  L.  T.  41.     308,  389, 

390,   399,   446,   455,   470,   473,   492, 

493,  498,  555. 
Mather  v.  Trinity  Ch.,  3  S.  &  R.  509. 

645. 
Mathcs  V.  Dobschuetz,  72  111.  438,   7 

Chi.  Leg.  News  43.     94,  102. 
Mathews  v.  Davis,  6  Humph.  324.    80. 
Mathinet   v.   Giddings,    10   Ohio    364. 

227,  228. 
Matson  v.  Calhoun,  44  Mo.  368.     93. 
Matthiesen    v.    Arata,    32    Ore.    342, 

50  Pac.  1015.     29,  36,  146,  429. 
Mattock  V.  Fry,  15  Ind.  483.     369. 
Matzon  v.  Griffin,  78  111.  477.     33,  56, 

95,  96,  393,  406,  410,  620. 
Maus  V.  Logan  sport,  P.  &  B.  R.  R., 

27  111.  77.     566. 
Maxwell  L.  Co.  v.  Santistevan,  7  N. 

M.  1,  32  Pac.  44.     224. 
May  V.   McConnell,  102  Ala.  577,   14 

So.  768.     427. 
Mayer  v.  Waters,  45  Kan.  78,  25  Pac. 

212.     113. 
Mayfield  v.  Wadsley,  3  B.  &  C.  357,  5 

D.  &  R.  224.     664. 
Mayhew  v.  Hardesty,  8  Md.  479.    11. 


THE    BOTTOM    I'AGES.] 

Mayo    V.    Cartwright,    30    Ark.    407. 

412. 
Mayo  V.  Foster,  2  McCord  Ch.   137. 

608. 
Mayo  V.  Hewhoff,  47  N.  J.  Eq.  31, 

19  Atl.  837.     124,  217. 
Mayor  of  Carterville  v.  Lyon,  69  Ga. 

577.     633. 
Mayor  of  Eaglehawk  v.  Lady  Barkly 

Co.,  7  Austr.  L.  T.  72.     558. 
Mayor   of   N.   Y.,   Re,   39   App.   Div. 

589,  57  N.  Y.  Supp.  657.     380,  399, 

400. 
Mayor,  &c.,  of  N.  Y.  v.  Brooklyn  F. 

I.  Co.,  41  Barb.  231,  39  N.  Y.  45, 

3   Abb.   Ct.   App.    Dec.    251.      125, 

235. 
Mayor  of  N.  Y.  v.  Exchange  F.  Ins. 

Co.,  9  Bosw.  424,  3  Abb.  Ct.  App. 

Dec.   261.     125,  235. 
Mayor  &c.  of  N.  Y.  v.  Hamilton  F. 

I.  Co.,  10  Bosw.  537,  39  N.  Y.  45, 

3    Abb.    Ct.    App.    Dec.    251.     125, 

235. 
McAllister   v.   Lawler,    32    Mo.   App. 

91.     344. 
McAllister  v.  Reel,  53  Mo.  App.  81, 

59  Mo.  App.  70.     191,  523,  533. 
McAuliffe    v.    Mann,    37    Mich.    539. 

518,  537,  545,  621. 
McCall  V.  State,  69  Ala.  227.     668. 
McCall    v.    Walter,    71    Ga.    287.      6, 

141,   142,  143,   144,   146,  671. 
McCarthy  v.  Burnet,  84  Ind.  23.     144, 

216. 
McCarthy  v.  McCarthy,  20  Can.  Law 

T.  Occ.  N.  211.     54,  70,  396,  435. 
McCarthy    v.    Trumacher,    108    Iowa 

284,  78  N.  W.  1104.    216,  257. 

McCaskill  v.  Richmond   Ind.   Co.,   23 
Que.  C.  S.  381.    75. 

McCaslin  v.  State,  99  Ind.  428.     362. 

McCay  v.  Wait,  51  Barb.  225.    601. 

McClintock'8   App.,    71   Pa.    St.   365. 
373,  375. 


TABLE  OF  CASES. 


Ixv 


[REFERENCES    ARE    TO 

McCHntock  v.  Graham,  3  McCord  553. 

433. 
McCluney  v.  Lemon,  Hayes  154.     390, 

406,  411,  462. 
McConnell  v.  Blood,  123  Mass.  47,  25 

Am.   Eep.   12.      30,    388,    389,   390, 

441. 
McCormiek    v.    McCormick,    40    Miss. 

760.     336. 
McCormiek  v.   Nixon,   83  N.   C.   113. 

602. 
McCormick  v.  Eiewe,  14  Neb.  509,  16 

N.  W.  832.    624. 
McCosh   V.   Barton,    2   Ont.   L.   77,    1 

Ont.  L.  229.     469. 
McCracken  v.  Hall,   7  Ind.   30.     196, 

198,   199,   216,   221,   223,  479. 
McCracken   v.    McCracken,   88    N.   C. 

272.     386. 
McCrillis  v.  Cole,  55  Atl.  196.     378, 

382,  406,  408,  440. 
McCuUough  V.    Irvine's   Ex.,    13    Pa. 

St.  438.      126,   170,   175,   193,   274, 

284,  595. 
McCumber    v.    Giiman,   15   HI.    381. 

422. 
McDaniel   v.   Lipp,   41    Neb.   713,   60 

N.  W.  81.     98,  620,  622. 
McDaniel    v.    Moody,     3     Stew.    314. 

444. 

McDavid  v.  Wood,  5  Heisk.  95.  31, 
109. 

McDonald  v.  Shepard,  25  Kan.  112, 
32,  70,  217,  262,  383,  415. 

McDonald  v.  Weeks,  8  Or,  Ch.  297, 
26,  33,  406,  443,  486,  543. 

McDonnell  v.  Burns,  83  Fed,  866,  28 
C,  C.  A.  174,  55  U.  S.  App.  233. 
478.- 

McDoiigall  V.  Waddell,  28  U.  C.  C.  P. 
191.     364. 

McDowall  V.  Phippen,  1  Ont.  143. 
344,  350. 

McElroy  v.  Brooke,  16  L.  E.  Ire.  46. 
535. 


THE    BOTTOM    PAGES.] 

J^IcFadden   v.   Allen,   134  N.  Y.   489, 

32  N.  E.   21,  19  L.  R.  A.  446,  50 

Hun  361,  3  N.  Y.  Supp.  356.     381, 

407. 
MeFadden    v.    Crawford,    36   W.   Va, 

671,    15    S.    E,    408,    32    Am.    Eep. 

894.     393,  538,  621. 
McFarlane    v.    Foley,    27    Ind.    App. 

848,  60  N.  E.  357,  87  Am.  St.  R. 

264.     32,  36,  429,  453. 
McGee  v.   Salem,    149   Mass.   238,   21 

N.  E.  386.     561. 
McGee  v.  Walker,  106  Mich.  521,  64 

N.   W.   482.      339. 
McGinnis   v.    Fernandes,   135   111.   69, 

26  N.  E.  109,  25  Am.  St.  Eep.  347, 

32    111.    App.    424.      70,    361,    362, 

618,  658. 
McGorrisk  v.  Dwyer,    78    Iowa    279, 

43  N.  W.  215,  5  L.  R.  A.  594,  16 

Am.  St.  E.  440.     33,  468,  470. 
McGraw  v.  Bookman,  3  Hill  265.  632. 
McGreary   v.   Osborne,   9   Calif.    119. 

432. 
McGregor   v.   Brown,    10   N.   Y.    117. 

374. 
McGregor  v.   High,   21   L.   T.   N.   S. 

803.     549,  656. 
McGregor  v.  McNeil,  32  U.  C.  C.  P. 

538.     66. 

Mcllvaine    v.    Harris,     20     Mo.    457. 

340. 
INIcIntosh  V.  McLeod,  6  Nova  S.  L.  R. 

128.     371. 

Mcintosh  V.  Saint  P.  Ch.,  120  N.  Y. 
712,  23  N.  E.  984,  54  N.  Y.  Super. 
291.     525. 

Mclntyre   v.    Barnard,    1    Sandf.    Ch, 

52,     374,  375. 
McTvcr  V.  Estabrook,  134  Mass.  550, 

16  Rep.  270.     122,  153,  255. 
Mc.Iunkin    v.    Duprce,    44    Tex.    500. 

107,  419. 
McKay  v.  Pearson,  6  Pa.  Super.  529. 

354,  363,  369. 


Ixvi 


TABLE  OF  CASES. 


[UEFERENCES    ABE   TO 

McKeago  v.   Ilauover   I.   Co.,   81    N. 

Y.  38,  37  Am.  Eep.  471,   16  Hun 

239.     54,  447,  448,  519. 
McKean  v.  Shoyer,  37  Neb.  694,  56 

N.   W.   492.     353. 
McKeeby  v.  Webster,  170  Pa.  St.  624, 

32  Atl.  1096.     343. 
McKellop    V.     Jackman,     50    Vt.    57. 

643. 
McKelvey  v.  Creevey,  72  Conn.  464, 

15  Atl.  4,  77  Am.  St.  Eep.  321.     74. 
McKenna   v.    Hammond,    3   Hill   331, 

30  Am.  Dee.  366.     302,  304. 
McKenzie  v.   Lampley,    31   Ala.   526. 

364. 
McKenzie  v.  Lexington,  4  Dana  129. 

208. 
McKenzie   v.    McDonald,    2    Nova   S. 

Dec.  11.     19,  96,  97,  513,  517. 
McKiernan    v.    Hesse,    51    Cal.    594. 

91,  436. 
McKim  V.  Kennedy,  3  Md.  Ch.  Dec. 

186.     387,  406. 
McKim   V.    Mason,    3    Md.    Ch.    Dec. 

186.     170,  441. 
McKinley  v.  Smith,  25  111.  App.  168, 

29  111.  App.  106.     32,  69,  423. 
McKinney  v.  Williams,  45  S.  W,  335. 

349. 
McLaren  v.  Coombs,  16  Gr.  Ch.  587. 

266. 
McLaughlin  v.   Johnson,   46   111.   163, 

92    Am.    Dec.    791.      62,    454,    457, 

516. 
McLaughlin  v.  Lester,  4  N.  Y.  St.  E. 

852.     32,  105. 
McLaughlin  v.  Long,  5  Har.  &  John. 

113.     592. 
McLaughlin   v.   Nash,    14   Allen    136, 

92  Am.  Dec.  741.    381. 
McLaurin    v.    McCall,    3    Strobh.    21. 

355. 

McLean  v.  Bovee,  24  Wis.  295,  1  Am. 
Eep.  185.     361. 

McLean  v.  Palmer,  2  Luz.  Leg.  Eeg. 
E.  349.    33,  58,  395. 


THE    BOTTOM    PAGES.] 

McLeod  V.  Barnum,  131  Calif.  605,  63 

Pac.  924.     502. 
McLeod  V.  Jones,  3  Mass.  Dig.  353, 

108  Mass.  191.     125,  201. 
McLey  v.   Howie,  40  Sc.  L.  E.   170. 

443. 
:\IcMahon  v.  Vickery,  4  Mo.  App.  225. 

431. 
McMath  V,  Levy,  74  Miss.  450,  21  So. 

9,  523.     138,  178. 
McMillan  v.   Ferrell,   7   W.   Va.   223. 

601. 
McMillan  v.  Fish,  29  N.  J.  Eq.  610, 

6  Eep.  661.  29,  438,  439,  472,  489. 
McMillen  v.  Pratt,  89  Wis.  612.  375. 
McMinn  v.  Mayes,  4  Calif.  209.  657. 
McNair   v.   Eochester  &c.   E.   E.   Co., 

14  N.  Y.  Supp.  39,  38  N.  Y.  St.  E. 

271.     112. 
McNally  v.  Connolly,  70  Calif.  3,  11 

Pac.  320.     64,  70,  122,  548. 
McNee  v.   Carnie,  Guthrie's  Sel.   Ct. 

345.     334. 
McNeil   V.   Moore,   7   Tex,   Civ.   App, 

536,  27  S.  W.  163.     540. 
McQueen  v.  Whetstone,  127  Ala.  417, 

30  So.  548.     422. 
McQuesten  v.  Thompson,  2  17.  C.  Er. 

&  A.  167.    407. 
McEae  v.  Stillwell,  111  Ga.  65,  36  S. 

E.  604.     375. 
McEea  v.  Central  Nat.  Bk.,  50  How. 

Pr.  51,  66  N.  Y.  489.     26,  29,  31, 

32,  471. 
McWilliams  v.  Bridges,  7  Neb.  419. 

93. 
Mead  v.  Thompson,  78  111.  62.    647. 
Meader  v.  Brown,  5  N.  Y.  St.  E.  839. 

152,  210,  213. 

Meagher  v.  Hayes,  152  Mass.  228,  25 
N.  E.  105,  23  Am.  St.  Eep.  819. 
411. 

Mears  v.  Callender,  [1901]  2  Ch.  388, 
70  L.  J.  Ch.  621,  84  L.  T.  E.  618, 
49  W.  E.  584,  65  J.  P.  615.  163, 
164,  252. 


TABLE  OF  CASES. 


Ixvii 


[references  are  to 

Meehelen  v.  Wallace,  7  Ad.  &  E.  49. 

513. 
Medicke  v.  Sauer,  61  Minn.  15,  63  N. 

W.  110.     209. 
Medley  v.   People,   49   111.   App.   213. 

68,  112. 
Meek  v.   Parker,   63  Ark.   367,   38   S. 

W.  900.     48,  430. 
Meeks  v.  Willard,  57  N.  J.  L.  22,  29 

Atl.  318.     398. 
Meerschat    v.    State,    57    S.    W.    955. 

667. 
Meffert  v.  Dyer,  81  S.  W.  643.     350, 

353,  479. 
Meig's  App.,   62   Pa.   St.   28,   1  Am. 

Eep.   372.     25,  31,  98,  520. 
Meinke  v.   Nelson,   56   III.   App.   169. 

66,  632,  636. 
Meistrell  v.  Reach,  56  Mo.  App.  243. 

426. 
Melhop  V.  Meinhart,  70  Iowa  685,  28 

N.  W.  545.     104. 
Mellon    V.    Allegheny    County,    3    Pa. 

Dist.  422.     564. 
Memphis   Gas-Light    Co.    v.    State,    6 

Cold.  310.     104,   559. 
Menger  v.   Ward,   28   S.  W.   821.     2, 

33,  144,  146. 
Mercantile  T.  Co.  v.  Chicago,  P.  &  St. 

L.  Ry.  Co.,  123  Fed.  393. 
Merchant,  Ro,  39  N.  J.  Eq.  506,  41  N. 

J.  Eq.  349,  7  Atl.  633.     352. 
Merchant  v,   Comback,  41   N.   J.   Eq. 

349,  39  N.  J,  Eq.  506.     352, 
Merchants  Bk.   v.   Stanton,  62   Minn. 

204,  64   N.  W.   390,  59   Minn.  532, 

61    N.   W.   680,    55    Minn.    211,    56 

N.  W.   821,   43   Am.   St.   Rep.   491. 

112,  113,  407,  417. 
Merchants'   Nat.   Bk.   v.   Stanton,   59 

Minn.  532.     56,  102,  400,  414. 

Mercil    v.    Broulette,    66    Minn.    416. 
99. 

Meriam  v.  Brown,  128  Mass.  391.    88, 

410. 
Merrell  v.  Legrand,  2  Miss.  150.    95. 


THE    BOTTOM    PAGES.] 

Merriam  v.  Ridpath,  16  Wash.  104,  47 

Pac.  416.    202. 
Merrill  v.  Dixon,  15  Nev.  401.    618. 
Merrill    v.    Wyman,    80    Me.    491,    15 

Atl.  58.     66. 
Merritt  v.  Judd,  14  Calif.  59.     9,  21, 

94,  96,  140,  160,  199,  200,  205,  216, 

245,  254,  262. 
Merritt  v.  Scott,  81  N.  C.  385.     263. 
Metcalf  V.  Fosdick,  23  Ohio  St.  114. 

501. 
Metropolitan   Concert   Co.   v.    Sperry, 

9  N.  Y.  St.  R.  342,  120  N.  Y.  620, 

23  N.  E.  1152.     144,  241,  251. 
Metropolitan     Counties    &c.     Soc.     v. 

Brown,  26  Beav.  454,  5  Jur.  N.  S. 

378,  28  L.  J.  Ch.  581,  7  W.  R.  303. 

25,  46,  455,  468. 
Meux  V.  Allen,   23  W.  R,  526,  L.  B. 

7   Eng.   &   Ir.   App.   481,   44   L.   J. 

Ch.  481,  22  W.  R.  609.     404,  491, 

499. 
Meux  V.  Jacobs,  L.  R.   7  Eng.  &  Ir. 

App.  481,  44  L.  J.  Ch.  481,  23  W. 

R.   526,   22   W.   R.   609.     405,   406, 

499. 
Meyer  v.  Betz,  3  Robt.  172.     399. 
Meyer  v.   O'Dell,   18   Tex.   Civ.   App. 

210.     192. 
Meyer  v.  Ornski,  25  S.  W.  655.     38. 
Meyers  v.  Marsh,  2  U.  C.  Q.  B.  148, 

185.     632,   653. 

Meyers  v.  Schemp,  67  111.  469.  102, 
514. 

Mhoon  V.  Greenfield,  52  Miss.  434. 
662. 

Michael  v.  Reeves,  14  Colo.  App.  460, 
60  Pac.  577.     426. 

Michigan  Cent.  R.  R.  Co.  v.  Chi.  &  M. 
L.  S.  R.  R.  Co.,  1  111.  App.  399. 
48. 

Michigan  M.  I.  Co.  v.  Cronk,  93  Mich. 

49,  52  N.  W.  1035.     95,  381,  620. 
Mickel   V.    York,    175    111.    62,   51    N. 

E.  848.     106. 


Ixviii 


TABLE  OF  (.A8>.S. 


[UEFERENCES    AUE    TO 

Mickle   T.   Douglas,    75   Iowa   78,   39 

N.  W.  198.     225. 
Middlcbrook    v.    Corwin,     15     Wend. 

169.     ISO,  184. 
Miles  V.  Ankatell,  25  Ont.  App.  458, 

29  Ont.  21.     38,  394,  411,  440. 
Miles  V.  McNaughton,  111  Mich.  350, 

69   N.   W.   481.     55,   58,   394,   472, 

522,  657. 
Miller   v.   Baker,   1    Met.    27,    3   Law 

Eep.  148.     162,  215,  635,  637,  648. 
Miller  v.  Cheney,  88  Ind.  466.     340, 

353. 
Miller  v.  County  of  Kern,  137  Calif. 

516,  70  Pac.  549.     334,  559. 
Miller  v.  Gray,  29  Tex.  Civ.  App.  183, 

68  S.   W.   517.     225,   607. 
Miller  v.   Green,   8  Bing.   92,   2   Tyr. 

1.     365. 
Miller  v.  Griffin,  102  Ala.  610,  15  So. 

238.     420. 
Miller  v.   Havens,   51    Mich.   482,    16 

N.  W.  865.     359. 
Miller  v.  Holland,  13  Pa.  Co.  622,  3 

Pa.  Dist.  449.     99. 
Miller  v.  McCormick  M.  Co.,  35  Minn. 

399,  29  N.  W.  52.     367. 
Miller  v.  Michoud,  11  Bob.  225.     78. 
Miller  v.  Muirhead,  21  Sess.  Cas.  4th 

Ser.  658.     122,  144. 

Miller  v.  Plumb,  6  Cow.  665,  16  Am. 

Dec.  456.     378,  389. 
Miller  v.  Shields,  55  Ind.  71.     524. 
Miller  v.  Waddingham,  91  Calif.  377, 

25  Pac.  688,   11  L.   E.  A.   510,   27 

Pac.  750,  13  L.  R.  A.  680.     19,  21, 

3.5,  381,  384,  414,  612. 

Miller  v.  Wilson,  71  Iowa  610,  33  N. 
W.  128.     54,  419. 

Miller  v.  Wohlford,  119  Ind.  305,  21 
N.  E.  894.     356. 

Miller  v.  Zufall,   113  Pa.  St.   317,  6 
Atl.  350.     374. 

Milligan    v.    Drury,    130    Mass.    428. 
19,  228,  561. 


THE    BOTTOM    I'AGES.] 

Milliken   v.   Armstrong,   17   Ind.   456. 

405. 
Milliman  v.  Neher,  20  Barb.  37.     367. 
Mills  V.  Mead,  7  Hun  36.     315. 
Mills  V.  Pierce,  2  N.  H.  9.     659. 
Mills   V.    Eeddick,    1    Neb.    437.      19, 

82,   620. 
Milton   V.   Colby,   5   Met.   78.     381. 
Mine  LaMotte  Co.  v.  White,  80  S.  W. 

356.    618. 
Minhinnick  v.  Jolly,  29  Ont.  238,  26 

Out.  App.  42.     55,  388. 
Minister   for   Lands   v.   Watt,    20   N. 

S.    W.    229,    16    N.    S.    W.    Wkly. 

Notes  10.     167. 
Minneapolis  &   N.   Elev.   Co.   v.   Clay 

County,    60    Minn.   522,   63   N.   W. 

101.      558. 
Minneapolis    T.    Co.    v.    Berhulst,    74 

111.  App.  350.     610. 
Minnesota    Co.    v.    St.    Paul    Co.,    2 

Wall.  646.     48. 
IMinnesota  L.  O.  Co.  v.  Maginnis,  32 

Minn.  193,  20  N.  W.  85.     367. 
Minshall   v.   Lloyd,   2   M.   &   W.   450. 

20,    122,    123,    140,    197,    198,    204, 

210,   400,  473,   504,   505,   544,   547, 

648,  649. 
Minter  v.   State,   71  Ark.  178,   71   S. 

W.  944.     677. 
Mississippi    &    T.    R.    R.    Co.    v.    De- 

vaney,  42  Miss.  555.    89. 
Mississippi  L.  Co.  v.  Miller,  109  Wis. 

77,  85  N.  W.  193.     375. 
;\Tississippi   E.    Co.   v.   Eing,    58    Mo. 

491.     380. 
Missoula    M.    Co.    v.    O'Donnell,    24 

Mont.   65,   60  Pac.   594,  991.     429. 
Missouri    &c.    Ey.    Co.    v.    Lycan,    57 

Kan.  635,  47  Pac.  526.     640. 
Missouri,    K.    &    T.    Co.    v.     Miami 

County,  73  Pac.   103.     563. 

Missouri   Pac.   Ey.    Co.   v.   Bradbury, 

79  S.  W.  966.     117,  215. 
Missouri    P.    Ey.    Co.    v.    Cullers,    81 

Tex.  382,  17  S.  W.  19.     36,  87,  96. 


TABLE  OP  CASES. 


Ixiz 


[REFERENCES    ARE    TO 

Missouri   T.   Co.   v.    Cunningham,    81 

Mo.  App.  262.     346. 
Missouri  V.  Co.  v.  Barwick,  50  Kan. 

57,  31  Pac.  685.     345. 
Missouri  V.  I.  Co.  v.  Kiehl,  25  Kan. 

390.     344. 
Mitcham  v.  Moore,  73  Ala.  542.    339. 
Mitchell  V.   Billingsley,   17   Ala..  391. 

38,   86,   99,   454,   640. 
Mitchell  V.  Freedley,  10  Pa.  St.  198. 

478,   542. 
Mitchell  V.  Illinois  &  St.  L.  E.  E.  & 

C.  Co.,  85  111.  566.     90. 
Mitchell  V.  Smith,  67  Me.  338.     393. 
Mitchell    V.    Township    of   Lake,    126 

Mich.  367,  85  N.  W.  865.     563. 
Mitchell  V.  Tschida,  71  Minn.  133,  73 

N.  W.  625.     340,  361. 
Moffett  V.   Armstrong,   40   Iowa  484. 

341. 
Monday  v.   O'Neil,   44   Neb.   724,   63 

N.   W.    32,   48   Am.   St.   Eep.    760. 

347,  358. 
Monroe    W.    Co.    v.    Frenchtowu,    98 

Mich.  431,  57  N.  W.  268.     560. 
Montague   v.   Dent,   10   Eich.   L.   135, 

67  Am.  Dec.  572.     22,  448. 
Montgomery,  Ex  parte,  4  Ir.  Ch.  520, 

7  Ir.  Jur.  342.     387,  390,  504,  505. 
Montgomery   County   v.   Bean,    82   S. 

W.   240.      383. 
Monti  V.  Barnes  fl901],  1  K.  B.  205, 

70   L.   J.   K.   B.   225,   83   L.   T.   E. 

619,    49    W.    R.    147.      33,    36,    38, 

407,  412,  456. 
MonticcUo  Bk.  v.  Sweet,  64  Ark.  502, 

43  S.  W.  500.     408. 
Montooth    V.    Gamble,    123    Pa.    St. 

240,   16  Atl.   594.     111. 
Mooers  v.   Wait,   3  Wend.   104.     75, 

642. 

Moody  V.  Aiken,  50  Tex,  65.     33,  437, 

514. 
Moody  V.  Whitney,  34  Me.  563.     642. 
Moore  V.   Combs,   24   Ind.   App.   464, 

56  N.  E.  85.     618. 


THE   BOTTOM    PAGES.] 

Moore    v.    Cunningham,    23    111.     328, 

85. 
Moore  v.  Drinkwater,  1  Post.  &  Fin. 

134.  549,  639. 

Moore  v.   Moran,  64  Neb.   84,   89  N. 

W.  629.     37,   74,  394,  478,  486. 
Moore  v.   New   O.   W.   Co.,   114   Fed. 

380.     113. 
Moore  v.   Simonson,   27  Ore.   117,   39 

Pac.  1105.     524. 
Moore  v.   Smith,   24  111.   512,   26  111. 

392.     140,  198,  385,  402,  405,  432. 
Moore  v.  Valentine,   77  N.  Car.   188. 

64,   382,   384. 
Moore  v.  Vaughn,  42  Neb.  696,  60  N. 

W.  914.     188. 
Moore  v.  West,  «  East  339.     351. 
Moore    v.    Wood,    12    Abb.    Pr.    393. 

140,   141,   150,   202,  648,   656. 
Moore  &  E.  B.  Co.,  Ex  parte,  14  Ch. 

D.  379,  49  L.  J.  Bankr.  60,  14  Co. 

Ct.   &   Bankr.   Cas.   485.    390,   492, 

493. 
Mootyah  Chetty  v.  Yacob,  4  Kysche 

568.      546. 
Moreland  v.  Myall,  77  Ky.  474.     364, 

365. 
Moreland  v.   Strong,   115   Mich.   211, 

73  N.  W.  140.     340,  348. 
Morey  v.  Hoyt,  62  Conn.  542,  26  Atl. 

127,   19  L.  B.  A.  611.     31,  35,  60, 

135,  210,   544,   545,   546. 

Morgan's  App.,  39  Mich.  675.     89. 

Morgan  v.  Arthurs,  3  Watts  140.  425, 
426. 

Morgan  v.  Eari  of  Abergavenny,  8  C. 

B.  768.     330. 
Morgan   v.    Perkins,    94   Ga.   353,    21 

S.   E.  574.     374. 

Morgan  v.  United  States,  14  Ct.  CI. 
319.      213. 

Morgan  v.  Varick,  8  Wend.  587.     70, 

634. 
Morgan  K.  E.  Co.,  Ee,  32  La.  A.  371. 

534. 


Ixx 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  TUB  BOTTOM  TAGES.] 


Morotock  Ins.  Co.  v.  Rodefer,  92  Va. 

747,  24  S.  E.  393,  53  Am.  St.  Rep. 

746.     35,  61,  462,  468. 
Morris's   App.,   88   Pa.  St.   368.     25, 

68,   407. 
ISIorris    v.    French,    106    Mass.    326. 

115,  478. 
Morris    v.    Grinnell,    51    Conn.    481. 

502. 
Morris  v.  Morris,  3  DeG.  &  J.  323. 

614. 
Morris  v.  Tinker,  60  Ga.  466.     658. 
Morrison   v.   Berry,   42   Mich.    389,   4 

N.   W.    731,   36   Am.   R.   446.      87, 

647. 
Morrison   v.   Sohn,   90   Mo.   App.   76. 

144,  208,  518. 
Morrow,    Ex  parte,    1    Lowell's  Dec. 

386,  2  N.  B.  R.  665.    141,  228,  240, 

242,  448,  451,  510. 
Morrow  v.  Burney,  2  Ind.  Ter.  440, 

51  S.  W.  1078.     216,  650. 
Morse  v.  Arnfield,  15  Pa.  Super.  140. 

452. 
Morton  v.  Weir,  5  Hun  177.     533. 
Mosely  v.  Allen,  138  Mass.  81.     533. 

Moser,  Re,  13  Q.  B.  D,  738,  1  Mor- 

rell   244.     207. 
Moss  V.  James,  47  L.  J.  Q.  B.  160, 

37  L.  T.  R.  715,  38  L.  T.  R.  595, 
6  Rep.  223.     207,  213. 

Mott  V.  Palmer,  1  N.  Y.  564.     416, 

483,  484. 
Mott   I.   Wks.   V.   Middle   S.    Co.,    17 

App.  D.   C.   584.     414,  450. 
Mott  Iron  Works  v.  Reiliy,  81  N.  Y. 

Supp.  323,  39  Misc.  833.     486. 
Mound  Cy.  C.  Co.  v.  Macgurn,  97  Mo. 

App.  40.3,   71  S.  W.  460.     564, 
Mount   Carmel  v.   Shaw,   155   111.   37, 

38  N.  E.  584,  52  111.  App.  429.     99. 
Muehling    v.    Muehling,    181    Pa.    St. 

483,  37  Atl.  527,  59  Am,  St.  Rep. 
674.      58,  407. 


Mueller  v.  Chicago,  M.  &  St.  P.  Ry, 
Co.,   Ill   Wis.   300,  87   N.  W.   239. 
33,   119,   195. 
Mueller   v.    Olson,    90    Minn.   416,   97 

N.  W.  115.     340,  369,  642. 
Muir  V.  Jones,  23  Ore.  332,  31  Pac. 

646,  19  L.  R.  A.  441.     392,  486. 
Mull  V.  Graham,  7  Ind.  App.  561,  35 

N.  E.  134.     191. 
Mullen  V.  Pugh,  16  Ind.  App.  337,  45 

N.  E.  347.     191,  525,  532,  533. 
Mulrooney  v.  Obear,  171  Mo.  613,  71 

S.  W.   1019.     395. 
Mundine  v.  Pauls,  28  Tex.  Civ.  App. 

46,    66    S.    W.    254,      33,    36,    414, 

484. 
Municipal    Coun.   of   Sydney   v.    Aus- 
tralian G.  Co.,  3  N.  S.  W.  St.  R. 

66,    20    N.    S.    W.    Wkly,    N.    59. 

568,   577. 
Municipal   Coun.   of   Sydney   v,   Syd- 
ney P.  Co.,  3  N.  S.  W.  St.  R.  87, 

20   N.    S.   W.   Wkly.   N.   64.      568, 

577. 
Munro  v.  Taylor,  8  Hare  60.     86. 
Munroe  v.  Armstrong,  179  Mass.  165, 

60  N.  E.  475.     119. 
Murdock    v.    Gifford,    18    N.    Y.    28. 

31,  308,  313,  378,  387,  441,  543. 
Murley  v,  McDermott,  3  N,  &  P.  356. 

629,   630. 
Murphey  v.  Illinois  T.  &  S.  Bk.,   57 

Neb,  519,    77  N,  W.  1102,     523, 
Murphy    v,    Fleetford,    30    Tex.    Civ, 

App,  487,  70  S,  W,  989,     426. 
Murphy  v,  Marland,  8  Cush.  575.    86, 

381. 
Murphy  v.  Smith,  61  App.  Div.  574, 

70  N.  Y.  Supp.  786.     390,  395. 
Murphy  v.   Stafford,   4   Ir.  Jur.    231. 

633. 

Murray  v.  Bender,  125  Fed.  705,  60 
C.  C.  A.  473,  63  L.  R.  A.  783.  55, 
87,   111,   395. 

Murray  v.  Gouveneur,  2  Johns.  Cas. 
442.     79. 


TABLE  OF  CASES. 


Ixxi 


[EEFEREXCES    ABE    TO 

Murray  v.  Moruss,  27  Mich.  203.  236. 
Murray  v.  Van   Derlyn,   24   Wis.   67. 

639. 
Musch    V.    Burkhart,    83   la.    301,    48 

N.  W.   1025,   12   L.   K.   A.  484,   32 

Am.  St.  K.  305.     99. 
Muskett  V.  Hill,  7  Scott  855,  5  Bing. 

N.  C.  694.     598. 
Mutual  B.   I.   Co.   V.   Huntington,   57 

Kan.  744,  48  Pac.  19.     407. 
Mutual  L.  I.  Co.  V.  Bigler,  79  N.  Y. 

568,  18  Hun  371.     610. 
Mutual  L.   I.   Co.  V.   Dowden,   3  Atl. 

351.     407. 
Mutual  L.  I.  Co.  V.  National  Bk.  of 

Newburgh,  18  Hun  371,  79  N.  Y. 

568.      35,   610. 
Mutual  L.  Co.  V.  Gashe,  18  O.  C.  C. 

681,  3  Ohio  Dec.  647.     428. 
Muzzey  v.  Davis,-  54  Me.  361.     636. 
Myer  v.  Whitaker,  55  How.  Pr.  376, 

5   Abb.   New  Cas.   172.     83. 
Myers  v.  White,  1  Rawle  353v    349. 
Myrick  v.  Bill,  3  Dak.  284,  17  N.  W. 

268.      36,    95,    102,    103,    105,    110, 

522,  621. 
Naftzinger  v.   Eoth,   93  Pa.   St.  443. 

386,  665. 

Nairn  v.  Majoribanks,  3  Euss.  582. 
523. 

Nanz  V.  Park  Co.,  103  Tenn.  299, 
52  S.  W.  999.     13. 

Nashville,  C.  &  St.  L.  Ry.  v.  Heikens, 
79  S.  W.   1039.     398. 

Nason  v.  Tobey,  182  Mass.  314,  65 
N.  E.  389,  94  Am.  St.  Eep.  659. 
182. 

Nason  Mach.  Co.  v.  Upham,  26  App. 

Div.  420,  50  N.  Y,  Supp.  197.   427. 
National   Bk.   v.    North,   160   Pa.   St. 

303,  28  Atl.  694.     36,  54,  390,  450, 

538. 

National  Bk.  of  Sturgps  v.  Lavan- 
seler,  115  Mich.  372,  73  N.  W.  399. 
407. 


THE   BOTTOM    PAGES.] 

National  P.  Wks.  v.  Oconto  W.  Co., 

52  Fed.  43,  59  Fed.  19,  7  C.  C.  A. 

603,  18  U.  S.  App.  380.     431. 
National   W.   Co.   v.   Kansas   Cy.,   62 

Fed.  853,  10  C.  C.  A.  653.  533. 
Nawahi  v.  Hakalau  P.  Co.,  14  Haw. 

460.     337,  358. 
Naye  v,  Noezel,  50  N.  J.  L.  523,  14 

Atl.   750.     237. 
Naylor  v.  ColUnge,  1  Taunt.  19.     21, 

238,  240,  242. 
Neal   V.   Viney,   1   Camp.   N.   P.   471. 

665. 
Needham  v.  Allison,  24  N.  Ham.  355. 

182. 
Neib  V.  Hinderer,  42  Mich.  451,  4  N. 

W.  159.     462. 
Neiderstein  v.  Cusick,  178  N.  Y.  543, 

83   App.   Div.   36,   81   N.   Y.   Supp. 

1058.     533. 
Neilson  v.  Iowa  E.  R.  Co.,  51  la.  184, 

715,  1  N.  W.  434.     32,  50. 
Neiswanger   v.    Squier,    73    Mo,    192. 

207,  217,  219,  223,  260,  652,  657. 
Nelson  v.  Burt,  15  Mass.  204.  642. 
Nelson  v.  Graff,  12  Fed.  389.     64,  70, 

618. 
Nelson  v.  Howison,  122  Ala.  573,  25 

So.   211.      31,   36,   116,   486. 
Nelson  v.  Lawson,  71  Miss.  819.    374. 
Nelson  v.  Nelson,  6  Gray  385.     65. 
Nelson  v.  Pinegar,  30  111.  473.     610, 

611,   612. 
Ncsmith  v.  Martin,  75  Pac.  590.    516. 
Nethery  v.  Payae,  71  Ga.  374.     603. 
Nottloton  V.  Sikoa,  8  Met.  34.     373. 
Neufelder  v.  Third  St.  Ey.,  23  Wash, 

470,  63  Pac.  197,  53  L.  R.  A.  600, 

83  Am.  St.  Rep.   831.     441. 
Nevitt  V.  Gillespie,  2  Miss.  108.     603. 
Newark  &  H.  Co.  v.  North  Arlington, 

65  N.  J.  L.  150,  46  Atl.  568.     562. 

Newbery,  Ex  parte,   1  Lowell's  Dec. 

386,  10  L.  T.  N.  S.  661.     508,  509. 
New  Chester  Water  Co.  v.  TTolly  Mfg. 

Co.,  53  Fed.  19,  3  C.  C.  A.  399,  3 


Ixxii 


TABLE  OF  CASES. 


[UEFEKENCES    AKK    TO 

U.  S.  App.  264,  48  Fed.  879.     26, 

33,  479,  482. 
Ncweomb    v.    Earner,    2    John.    421. 

370. 
Nowgass  V.  Eailway  Co.,  54  Ark.  140, 

15  S.  W.  188.     90. 
Nowhall  V.  Kinney,  56  Vt.  591.    403, 

438.   465. 
New  Haven  v.  Fair  Haven,  38  Conn. 

422.     562. 
Newhoflf  V.  :\Iayo,  48  N.  J.  Eq.  619, 

23  Atl.  265,  47  N.  J.  Eq.  31.     124, 

533. 
Newland  v.  Baker,  26  Kan.  341.    382, 

399,   564. 
New  Mexico  v.  United  S.  T.  Co.,  172 

U.   S.    171,    174   U.    S.    545.      558, 

563. 
New  Orleans  v.  Euss,  27  La.  A.  413. 

136,  558. 
New   O.   Bkg.   Co.   v.   Leeds,   49   La. 

Ann.  123,  21  So.  168.     34,  388,  389, 

462. 
N.  O.  Nat.  Bk.  v.  Eaymond,  29  La. 

A.  355.     407. 
Newport   Co.    v.   Assessors,    19   E.   I. 

632,   36  Atl.  426.     22,   562,   564. 
Newson  v.  State,  107  Ala.  133,  18  So. 

206.     671. 
New  S.  W,  C.  S.  Co.,  Ee,  12  N.  S. 

W.  L.  E.  Eq.  87,  7  N.  S.  W.  Wkly. 

N.  122.     408. 
Newton  v.  Odom,  45  S.  E.  105.     355. 
New  Westminster  T.  Co.,  Ee,  32  Can. 

L.  J.  490.     562. 
New  York,  Ee,  39  App.  Div.  589,  57 

N.  Y.  Supp.  657.     380,  399,  406. 
New  York  v.  Brooklyn  F.  Ins.  Co.,  39 

N.  Y.  45,  41  Barb.  231,  3  Abb.  Ct. 

App.  Dec.  251.     125,  235. 

New  York  v.  Exchange  F.  Ins.  Co., 
3  Abb.  Ct.  App.  Dec.  261,  9  Bosw. 
424.      125. 

New  York  v.  Hamilton  F.  Ins.  Co., 
39  N.  Y.  45,  3  Abb.  Ct.  App.  Dec. 
251,  10  Bosw.  537.     125,  235. 


THE    BOTTOM    PAGES.] 

New  Y.  D.  Est.  v.  DeWestenberg,  46 

Hun    281,    11    N.    Y.    St.    E.    358. 

534. 
New   Y.   G.   Co.   v.   Tacoma   Ey.    Co., 

93  Fed.  51,  35  C.  C.  A.  192.     562. 
New    York    I,    Co.    v.    Cosgrove,    47 

App.  Div.  35,  62  N.  Y.  Supp.  372, 

167  N.  Y.  601,  60  N.  E.  1117.   414. 
New   Y.   L.   Ins.   Co.   v.   Allison,    107 

Fed.  179,  46  C.  C.  A.  229.     33,  37, 

56,  394,  395,  437,  448,  449. 
New  Y.  S.  Co.  V.  Saratoga  L.  Co.,  88 

Hun  569,  34  N.  Y.  Supp.  890.     32, 

396,   407,   538. 
New  Y.   Tr.  Co.  v.  Capital  Ey.  Co., 

77  Fed.  529.     408. 
Niagara   I.   Co.    v.    Heenan,    181    111. 

575,  54  N.  E.  1052.     379. 
Niblet  V.   Smith,   4   Term   504.      549, 

623,   652. 
Nichols  V.  Dewey,  4  Allen  386.     628. 
Nichols  V.  Lappin,  79  S.  W.  995.    346. 
Nichols  V.  Potts,  71  N.  Y.  Supp.  765, 

35   Misc.   273.     414. 
Nicholson  v.  New  Z.  Bk.,  12  N.  Z.  L. 

E.  427.     84,  486. 
Nicholstone    Cy.    Co.    v.    Smalley,    21 

Tex.  Civ.  App.  210,  51  S.  W.  527. 

87. 
Niekerson     v.     Wells-Stone     Co.,     71 

Minn.  230,  73  N.  W.  959,  74  N.  W. 

891.     478. 
Nieland    v.    Mahnken,    89    App.    Div. 

463,  85  N.  Y.  Supp.  809.     255. 
Nigro  V.  Hatch,  2  Ariz.  144,  11  Pac. 

177.     19,  192. 
Nimmo    v.    Allen,    2    La.    Ann.    451. 

63,  436. 
Nimmons  v.   Moye.     302,   304. 
Nineteenth  P.  Ch.  v.  Fithian,  16  Ky. 

L.  E.  581,  29  S.  W.  143.     523. 
Nisbet    V.    Mitchell-Innes,    17    Sc.    L. 

Eep.  438.     396,  435,  447,  448,  450, 

452,   462,   468. 

Nixon  V.  Stillwell,  5  N.  Y.  Supp.  248, 
23  N.  Y.  St.  E.  474.     99. 


TABLE  OF  CASES. 


Ixxiii 


[KEFEKESCES    ARE    TO 

Noble  V,  Bosworth,  19  Pick.  314.   389, 

516. 
Noble  V.  Sylvester,  42  Vt.   146.     56, 

435,   454. 
Noble   V.    Tyler,   61    O.    St.    432,    56 

N.  E.   191,  48  L.  K.  A.  735.     355. 
Nolan    V.    Eotsler,    135    Cal.    264,    67 

Pac.   127.     200,   208,   607. 
Noon   V.   Finnegan,   32   Minn.   81,   10 

N.   W.    391.      633. 
Nordyke  v.  Hawkeye  W.  Co.,  53  la. 

521,  5  N.  W.  693.     122,  432. 
Norff  V.  Caudray,  Dyer  78.     678. 
Northam  v.  Bowden,  11  Exch.  70,  24 

L.  J.  Ex.  237.     645. 
North   British    R'y    Co.    v.    Assessor, 

25  Scot.  Law  Rep.  4.     11. 
Northern  v.  State,   1  Ind.  113.     365, 

370. 
Northern  C.   Ry.   Co.  v.   Canton  Co., 

30  Md.  347,  8  Am.  Law  Rep.  N.  S. 

540.     112,   142,   198,  212,  214. 
Northern  I.  R.  R.  Co.  v.  Connelly,  10 

O.  St.   159.     563. 
Northern    P.    R.    R.    v.     Carland,     5 

Mont.   146,  3  Pac.   134.     558. 
North  H.  R.  Co.  v.  Booraem,  28  N. 

J.   Eq.  450.     89,   410.. 
Northrup  v.  Trask,  39  Wis.  515.    96, 

385,   647. 
Northumberland's    Case,    Owen    124. 

321. 
Northwestern    I.    Co.    v.    George,    77 

Minn.   319,   79   N.   W.    1028,    1064. 

Ill,  414. 
Norton   v.   Craig,   68   Me.   275.     459, 

461. 
Norton    v.    Dashwood    [1896],    2    Ch. 

497,  65  L.  J.  Ch.  737,  75  L.  T.  R. 

205,  44  W.  R.  680.     33,  295,  474. 
Noycs  V.  Terry,  1  Lans.  219,  220.    iii, 

21,  454,  455. 

Niidell  V.  Williams,   15  U.   C.   C.   P. 
348.     533. 

Nuernbcrgcr    v.    Von    Der   TTeidt,    39 
111.   App.   404.      370. 


THE   BOTTOM    PAGES.] 

Nutley,  Re,  96  L.  T.  585.     12,  536. 
Nutt  V.  Butler,  5  Esp.  176.     663. 
Nye  V.  Patterson,  35  Mch.  413.    359, 

365. 
Oakland   Cem.    Co.   v.   Bancroft,    161 

Pa.    St.    197,    28    Atl.    1021.      396, 

407,  538. 
Oakley  v.  Monck,  L.  R.  1  Exch.  159, 

14  W.  R.  406,  12  Jur.  N.  S.  213,  14 

L.  T.  N.  S.  20,  34  L.  J.  Exch.  137, 

13  W.  R.  721.     162,  227,  261. 
Oakman    v.    Dorchester    Ins.    Co.,    98 

Mass.  57.     88,  381. 
Oates  V.  Cameron,  7  U.  C.  Q.  B.  228. 

388,  408,  647. 
O'Brien  v.  Hansen,  9  Mo.  App.  545. 

35,  427. 
O'Brien   v.   Kusterer,    27    Mich.    289. 

142,    144,   145. 
O'Brien  v.   Mueller,   96   Md.   134,   53 

Atl.   663.     66,   216,   223,   256. 
O'Brien  v.  O'Brien,  Ambl.  107.    266, 

606. 
0  'Brien    Boiler   Co.    v.    Haydoek,    59 

Mo.  App.  653.     217,  426,  431. 
O'Connell   v.   O'Callaghan,   3   Jr.   Eq. 

199.     358. 
Oconto   Water   Co.   v.    National   Pipe 

Works,  59  Fed.  19,  7  C.  C.  A.  603, 

18    U.    S.    App.    380,    52    Fed.    43. 

43L 
0  'Donnell  v.  Burroughs,  55  Minn.  91, 

56  N.  W.  579.     401. 

0 'Donnell  v.  Hitchcock,  118  Mass. 
401.      19,   544. 

O 'Dougherty  v.  Felt,  65  Barb.  220. 
457. 

Off  V.  Finkelstein,  200  111.  40,  65  N. 
E.  439,  35  Chi.  Leg.  N.  163,  100 
111.  App.  14.     393,  537,  542. 

Official    Assignee   v.    Maxwell,    11    N. 

Zea.    312.      210,    213,   225,    230. 
Ogdcn    V.    Jennings,    62    N.    Y.    526. 

397. 
Ogdcn  V.  Stock,  34  111.  522,  85  Am. 


Ixxiv 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Dec.  332.     31,  37,  59,   61,  63,  97, 

381,  618,  620. 
Ogdcn  Luinb.  Co.  v.  Busse,   92  App. 

Div.  143,  86  N.  Y.  Supp.  1098.   594, 

595. 
Ogontz  Land  Co,  v.  Johnson,  168  Pa. 

St.   178,   31   Atl.   1003,   14  Pa.   Co. 

86,  3  Pa.  Dist.  642.     11. 
O'Hanlon   v.   Denvir,   81   Cal.   60,   22 

Pac.  407,     95. 
O'Hanlon  v.  Murdoek  [1901],  1  L  K. 

122.     376. 
Ohio  &  M.  B.  E,   Co,  v,  Weber,   96 

111.  443,     563,  567. 
Ohio   O,   Co,  V,   Griest,   30  Ind,  App, 

84,  65  N.  E,  534.     641, 
Oland  V,  Burdwick,  5  Co,  116a,  Mo, 

394,     358. 
Oland 's  Case,  5  Co.   116b,     360, 
Oliver  v.  Brown,  80  Me.  542,  15  Atl. 

599,     393, 
Oliver   v,   Lansing,    59   Neb,    219,   80 

N.  W,  829.     381,  395,  437,  447. 
Oliver  v,   Vernon,   6   Mod.   170,   Holt 

332,     120,  478,  642, 
Olmstead   v,   McNall,    7   Blackf,   387, 

44,  431. 
Olmstead  v,   Niles,   7  N.   Ham.   522. 

374. 
Olympic  Theater,  Ee,  2  Browne  275. 

50,   302,  425, 
Omaha  B.  &  T,  Ey,  Co,  v,  Whitney, 

99  N,  W,  525,  94  N,  W.  513,     112, 

117,  397,  399,  478. 
Ombony  v,  Jones,   19   N,  Y,   234,   21 

Barb,  520.     153,  157,  167,  175,  193, 

198,  203,  207,  209,  212. 

Onslow  V, ,  16  Ves.  173.   608. 

Ontario  Car  Co.  v.  Farwell,   18  Can, 

1.     48,   408, 
Oppenheimer  v.   Morrell,   118  Pa.  St. 

189,  12  Atl.  307.     430. 

Orange  &  A.  E.  E.  Co.  v.  Alexandria, 
17  Gratt.  176.     566. 

Oregon  E.  &  N.  Co.  v.  Mosier,  14  Ore. 
519.     89, 


TUB   BOTTOM    PAGES.] 

Orgell  V.  Smith,  6  M,  &  S,  182,    675, 

676. 
Orient    Ins,    Co,    v,    Parlin-Orendorff 

Co.,   14  Tex,  Civ.  App.   512,   38   S. 

W,  60.     33,  122,  223,  379. 
Orphan  Soc,  v,  Waterbury,  8  Daly  35, 

532. 
Orr  V,  Davis,  17  N.  Zea.  106.     141, 

142,   144,  255, 
Osborn  v.  Potter,   101   Mich,  300,   56 

N.  W,  606.     137,  216. 
Osborne   v.   Humphrey,   7   Conn,   335, 

558, 
Oscamp  V,  Crites,  37  Neb,  837,  56  N, 

W,   394,      624, 
Osgood  V,  Howard,  6  Me.  452.     103, 

650. 
Oskaloosa  W.  Co,  v.  Board  of  Equl., 

84  la.  407,  51  N.  W.  18.     560. 
Ostrander  v.  Livingston,  3  Barb,  Ch. 

416.     524. 
Oswald  v.  Whitman,  22  Nova  S.   13. 

217,   513. 
Otis  v.  May,  30  HI.  App.  581.     26, 

388,   391. 
Ott   V.   Specht,    8   Hous.   61,    21   Atl. 

721.     36,  103,  622, 
Ottumwa  Mill  Co,  v,  Hawley,  44  la. 

57,  24  Am.  Eep,  719,  3  Cent,  Law 

J.   657,    10   W.   Jur.   668.      28,    32, 

62,    388,    437,    439,    440,    441,    444, 

464, 
Overman  v,  Sasser,  107  N.  Car.  432, 

12  S.  E.  64,  10  L.  E.  A.  722,     273, 
Overton  v.  Williston,  31  Pa.  St.  155. 

198,   218,   647, 
Oves  V.  Ogelsby,  7  Watts  106.     387, 

402,  405. 
Owens  V.  Lewis,  46  Ind.  488.     374, 
Oyster  v.   Oyster,   32   Mo,   App,   270. 

362,   658, 

Pacheco  v,  Hunsacker,  14  Cal,  120. 
372. 

Pacific  M,  Co.  V.  James  C.  Co.,  68 
Fed.  966,  16  C.  C.  A.  68,  29  U.  S, 
App.  698,     431. 


TABLE  OF  CASES. 


Ixxv 


[refkbences  are  to 

Pacific  K.  E.  Co.  v.  Cass  Co.,  53  Mo. 

17.     566. 
Packington's  Case,  3  Atk.  215.     266, 

606. 
Padgett  V.  Cleveland,  33  S.  Car.  339, 

11   S.  E.   1069.     30,   36,   417,   471, 

519. 
Page  V.  Davidson,   22   111.   112.     592, 

597. 
Page  V.  Edwards,  64  Vt.  124,  23  Atl. 

917.     415. 
Page  V.  Fowler,  28  Cal.  605,  37  Cal. 

100,  39  Cal.  412,  2  Am.  Eep.  462. 

626,   627,   628. 
Page  V.  Urick,  31  Wash.  601,  72  Pae. 

454,  96  Am.  St.  Eep.  924.     19,  95, 

104,   622. 
Paget 's  Case,  5  Co.  76b.     75,  458. 
Paige  V.  Peters,  70  Wis.  178,  35  N. 

W.  328.     95. 
Paine  v.  McDowell,  71  Vt.  28,  41  Atl. 

1042.     406,  420,  421. 
Paine  v.  Rector,   7  Hun  89.     532. 
Palmateer  v.   Eobinson,   60   N,   J.   L. 

433,  38  Atl.  957.     32,  85. 
Palmer  v.  Episcopum  Exon.,  1  Stra. 

576.     325. 
Palmer   v.   Forbes,    23   111.   301.     26, 

48,  53,   541. 
Palmer  v.  Young,  108  111.  App.  252. 

127,  187,  190. 
Pangborn    v.    Continental    I.    Co.,    62 

Mich.  638,   29   N.  W.   475.     398. 
Parham  v.  Thompson,  2  J.  J.  Marsh 
159.     364. 

Paris  V.  Norway  W.  Co.,  85  Me.  330, 
27  Atl.   143.     559. 

Park   V.   Baker,   7   Allen   78,   83   Am. 
Dec.  668.     388. 

Parker  v.   Goddard,   39   Me.   144,  48 

Me.   212.      228,    229,   651. 
Parker  v.  Hale,  78  S.  W.  555.     365. 

Parker  v.  Page,  41  Ore.  579,  69  Pac. 
822.     533. 

Parker  v.  Parker,  1  Gray  409,    386. 


THE   BOTTOM    PAGES.] 

Parker  v.  Eedfield,  10  Conn.  490.  216, 

558. 
Parker    v.    Shackelford,    61    Mo.    68. 

633. 
Parker    v.    Staniland,    11    East    362. 

370. 
Parker  v.  Storts,  15  O.  St.  351.    345. 
Parker  v.  Wulstein,  48  N.  J.  Eq.  94, 

21  Atl.  623.     9,  246. 
Parker  Com.  v.  Eeddick,  18  Ind.  App. 

616.     36. 
Parrott  v.  Palmer,  3  Myl.  &  K.  632. 

613,   614. 
Parsons  v.  Camp,  11  Conn.  525.    459. 
Parsons  v.  Clark,   76  Me.  476.      113, 

636. 
Parsons  v.  Copeland,  38  Me.  537.    23, 

27,  31,  380,  443. 
Parsons   v.    Hind,    14    W.    B.    860,    2 
Can.  L.  J.   217,   2  Loc.   Cts.   &  M. 
G.   122.     31,   442,  443,  447,  510. 
Partridge    v.    Hemenway,     89     Mich. 

454,  50  N.  W.   1084.     74,  617. 
Pasterfield  v.   Sawyer,  43  S.   E.   799, 

45  S.  E.  524.     625. 
Patent  Peat  Co.,  27  L.  T.  N.  S.  69. 

22,   390,  443,  492,  499,  504. 
Paterson    v.    Pyper,    20   U.    C.    C.    P. 

278.     403. 
Paton  v.  Sheppard,  10  Sim.  186.   475, 

476. 
Patridge  v.  Bere,  5  Barn,  &  Aid.  604. 
593. 

Patterson  v.   Cunlifife,   11   Phila.  564. 

595. 
Patterson  v.  Delaware  Co.,  70  Pa.  St. 

381.     25,  561,  .565. 
Patterson   v.   Gallagher,   25   Ore.   227, 

35  Pac.  454,  42  Am.  St.  Rep.  794. 

143,   431. 
Patterson  v.  Hausbeck,  8  Pa.  Super. 

36.     211. 

Patterson  v.  Johnson,  10  Gr.  Ch,  583, 
1  Can.  Law  J.  10.5,  1  Loc.  Cts.  & 
M.  G.  60.     436. 

Patterson  v.  Yeaton,  47  Me.  308.  386. 


Ixxvi 


TABLE  OF  CASES. 


t REFERENCES  ARK  TO  TlIK  BOTTOM  PAGES.] 


Pattison's  App.,  Gl   Pa.  St.  294,  100 

Am.  Dec.  637.     373,  374. 
Patton  V.  Moore,  16  W.  Va.  428,  37 

Am.  R.  789.     54,  63,  70,  382,  440, 

462,  538,  540. 
Paul  V.  Dowling,  1  M.  &  M.  267.    158. 
Paulin  V.  Forde,  March  211.     668. 
Paull  V.  Eldred,  29  Pa.  St.  415.    659. 
Pawly  V.  Wiseman,  3  Keb.  614.    293. 
Pawtucket    Inst.    v.    Almy,    13    R.    I. 

63.     535. 
Paxton  Cattle  Co.  v.  First  Nat.  Bk., 

21  Neb.  621,  22  N.  W.  155,  33  N. 

W.   271.     95. 
Payne   v.   ADderson,    35   La.   A.   977. 

407,   411. 
Payne  v.  Farmers '  &  C.  Bk,,  29  Conn, 

415,     403. 
Pea   V.   Pea,    35   Ind,   387.      31,    341, 

393,   516. 
Peaks    V,    Hutchinson,    96    Me.    530. 

94,   104,  483. 
Pearce  v.  Colden,  8  Barb.  522.     532. 
Pearson  v,  Sanderson,  128  111.  88,  21 

N.  E.  200,  28  111.  App.  571.     533. 
Peek   V.   Batchelder,   40   Vt.    233,    94 

Am.  Dec.   329.     54,  455. 
Peck  V.  Brown,  5  Nev.  81.     434. 
Peek  V.  Knox,  1  Sweeney  311.     648. 
Peckham  v.  Group,  3  Kan.  App.  369, 

42   Pac.  944.     345. 
Pecoul  V.  Auge,  18  La.  A,  615,     194, 

518. 
Pedroni   v.    Eppstein,    17   Colo.    App. 

424,  68   Pac.   794.     102. 
Peet  V.   Dakota  Ins.   Co.,   7   S.   Dak. 

410,  64  N.  W.  206.     11. 
Peirce  v.  Goddard,  22  Pick.  559.    83. 
Peirce   v.   Griee,    92   Va.   763,    24   S. 

E.  392.     534,  535. 
Pellenz   v.   Bullerdieck,    13   La,   Ann. 

274,     194, 
Pemberton  v.  King,  2  Dev,  376.     200, 

542,   544, 
Pender  v,  Bathgate  Oil  Co.,  24  Scot. 

Law  Eep.  519.     145,  535. 


Pendill  v.  Maas,  97  Mich.  215,  56  N. 

W.  597.     229. 
Penhallow    v.    Dwight,    7    Mass.    34. 

364. 
Penn   v.   Citizens'   Bk.,   32   La.   Ann. 

195.     109,  168,  349,  413. 
Penn   I.   Co.   v.   Thackara,   15   Phila. 

264,   38  Leg.   Intel.   139,   10   Wkly. 

Notes   Cas.    104,    13    Rep.    731,    11 

Wkly.   Notes  Cas.   391.     449. 
Penn  M.  I,   Co.  v.   Semple,   38   N.  J, 

Eq.  575.     440,  441,   543. 
Penn  M.  L.  I.  Co.  v.  Semple,   38   N, 

J.   Eq.   314.     610. 
Pennock  v.  Coe,  23  How.  117.     48. 
Pennsylvania    G.    Co.    v.    Gill,    1    Pa. 

Dist.,  28  Wkly.  N.  Ca.  36.     429. 
Pennsylvania,   P.   &  B,   E.   R.   Co.   v. 

Trimmer,   31  Atl.   310.     89, 
Pennybacker    v.    McDougal,    48    Cal. 

160,     19,  21,  91,  92,  94,  446,  454, 

629, 
Penry  v.  Brown,   2   Stark,  403.     244. 
Penryn  F,  Co,  v.  Sherman-Worrell  F, 

Co.,   76  Pac.   484.     348. 
Penton  v.  Robart,  2  East  22,  4  Esp. 

33.     134,   148,   149,   150,   162,   164, 

198,  200,  203,  273. 
People  V.  Board  of  Assessors,  93  N. 

Y.  308,  39  N,  Y,  81,     558,  560, 

People  V,  Cassity,  46  N.  Y,  46.     561, 

People  V.  Commissioners  of  Taxes, 
101  N,  Y,  322,  4  N.  E.  127,  23  Hun 
687,  80  N.  Y.  573,  10  Hun  207, 
82  N.  Y.  459,  19  Hun  460.  9,  559, 
561,  562. 

People  V.  DeWitt,  59  App.  Div.  493, 
69  N.  W,  Supp,  366,  167  N.  Y. 
575,  60  N.  E.  1118,     559. 

People  V.  .Jones,  120  Mich.  283,  79 
N.  W.  177.     55,  674. 

People  V,   Martin,  48  Hun  193,    559, 

People  V.  Nolan,  22  Mich,  229,     677. 

People  V.  Waldron,  26  App.  Div.  527, 
50  N.  Y.  Supp.  523.     29,  564. 


TABLE  OF  CASES. 


Lxxvii 


[eeferexces  are  to  the  bottom  pages.] 


People  V.   Wanzer,   88    N.  Supp. 

281,  43  Misc.  136.     668. 
People's  Sav.  Bk.  v.  Jones,  114  Cal. 

422,  46  Pac.  278.     619. 
Peoria,  D.  &  E.  By.  Co.  v.  Goar,  118 

111.  134,  8  X.  E.  682.     563. 
Peoria  F.  I.  Co.  v.  Lewis,  IS  III.  553. 

463. 
Percival     v.     Thurston     County,     14 

Wash.  586,  45  Pac.  159.     559. 
Perkins  v.  Bailey,  99   Mass.   61.     82. 
Perkins  v.  Swank,  43  Miss.  349.    31, 

170,  381,  418. 
Perkins'   Est.,   Ee,   26  Atl.   637.     94, 

111,   399,  516. 
Perrine  v.  Marsden,  34  Cal.  14.    608, 

611. 
Perrot  v.  Perrot,   3  Atk.  94.     608. 
Perry  v.  Carr,  44  N.  Ham.  118.     180. 
Perry  v.  Hamilton,   138  Ind.  271,  35 

N.  E.  836.     335,  608. 
Perry   v.   Terrel,   1   Dev.   &  Bat.   Eq. 

441.     355. 
Perry  v.  White,  111  N.  Car,  197,  16 


S.  E.   i: 


144. 


Peter  v.  Heneage,  12  Mod.  520,  1  Ld. 

Raym.   728.     318,   321. 
Peterson  v.  Clark,  15  John.  205.     74, 

592,   594,   643. 
Pet  re  v.  Ferrers  [1891],  Wkly.  Notes 


171. 


278,   477. 


Petre  v.  Heneage,  12  Mod.  520,  1  Ld. 

Raym.  728.     318,  321. 
Petrie    V.    Dawson,    2    C.    &    K.    138. 

513. 
Pettengill   v.   Evans,   5   N.   Ham.   54. 

394,  411,  453. 
Pflupor  V.   Carmichael,   54  App.   Div. 

153.      10,   30,   57,  435. 
Phelan   v.   Boyd,   14   S.   W.   290.     30, 

383,  539. 
Phelps  V.  Edwards,  52  Tex.  371.   417. 

Phelps  &  B.   Co.  V.  Baker,  49  Kan. 

434,   30  Pac.  472,     429. 
Phelps   &    B.    Co.    V.    Shay,    32    Neb. 

19,  48  .\.  W.  896.     429. 


Philadelphia   Mort.   Co.  v.   Miller,  20 
Wash.   607,  56  Pac.  382,  44  L.  E. 
A.  559,  72  Am.  St.  R.  138.     36,  58, 
45  L 
Philadelphia,   R.   &  N.   E.   E.   E.   Co. 
V.   Bowman,   23  App.   Div.   170,   48 
N.  Y.  Supp.  901,  163  N.  Y.  572,  57 
N.  E.  1122.     90,  410. 
Philadelphia,   W.   &   B.   R.   R.   Co.   v. 
Appeal  Tax  Ct.,  50  Md.  397.     558, 
566. 
Philbrick    v,    Ewing,    97    Mass,    133. 

395. 
Philion  V.  Bisson,  23  L.  Can.  Jur.  32. 

388,   390,   391,   407,   537. 
Philipson   v.    :Mnllanphy,    1    Mo.   620. 

255,   437,   439. 
Phillips  V,  Bowers,  7  Gray  21.     642. 
Phillips  V.  Grand  R.  I.  Co.,  46  U.  C. 

Q.    B.    334.      410. 
Phillips    V.    Keysaw,    7    Ok.    674,    56 

Pac.  695.     361. 
Phillips  V.   Myers,   55   la,   265,   7   N, 

W.  580.     72. 
Phillips   V.   Reynolds,    20   Wash.   374, 

55  Pac.  316.     534. 
Phillips  V.   Warner,   4   Ct,  App.   Civ. 

Ca.  s.  147.     365. 
Phinney  v.   Day,   76   Me.   83.     407. 
Phoenix  I.  Co.  v.  New  Y.  T.  Co.,  83 
Fed.  757,  28  C.  C.  A.  76,  54  U.  S. 
App.  408.     408. 
Phoenix    Mills    v.    Miller,    17    N.    Y. 
Supp.  158,  4  N.  Y.  St.  R.  787.    29, 
56,   57,   388,   390,   396,   407. 
Pickens  V.  Webster,  31  La.  Ann.  870. 

364. 
Pickerell   v.   Carson,   8   Iowa  544.    4, 

8. 
Pickering  v.  Moore,  67  N.  Ham.  533, 
32  Atl.  828,  68  Am.  St.  Rep.  695. 
183. 

Pickett   V.   Pope,    74   Ala.    122.      284, 
523. 

Pidgeley  v.  Eawling,  2  Colly  Ch.  275. 
264. 


Ixxviii 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Pierce   v.    Emery,    32    N.    Ham.    484. 

48,  420,  478. 
Pierce   v.   George,   108   Mass.   78,    11 

Am.  Rep.  310.     399,  418,  433,  439, 

444,  486. 
Pierce  v.  Goddard,  22  Pick.  559.   647. 
Pierce  v.  Hill.  35  Mich.  194.     362. 
Pierrcpont  v.  Barnard,  5  Barb.   364. 

374. 
Pigott   V.   Stratton,    29   L.   J.   N.   S. 

Ch.  1,  6  Jur.  N.  S.  1290,  1  L.  T. 

N.  S.  111.     208. 
Pike  V.  Butler,  4  N.  Y.  360,  4  Barb. 

650.     524. 
Pillow  V.  Love,  5  Hayw.  109.     544. 
Pillsworth  V.  Hotpon,  6  Ves.  51.     603. 
Pim    V,    Grazebrook,    4    Scott    N,    R. 

565.     504,  638. 
Pimlico    T.   Co.   v.   Greenmch,   L.   R. 

9  Q.  B.  9,  43  L.  J.  M.  C.  29.  570. 
Pinckard  v.  State,  62  Ala.  167.  668. 
Pinder  v.  Pinder,  18  W.  E.  309.    475, 

477. 
Pinkham    v.    Geer,    3    N.    Ham.    484. 

179. 
Pinner  v.  Arnold,  2  Cr.  M.  &  R.  613, 

Tyrwh.  &  Gr.   1.     517,  665. 
Pioneer   Co.   v.   Fuller,   57   Minn,   60, 

58  N.  W.  831.     217,  413. 
Piper  V.  Martin,  8  Pa,  St.  206.    542. 
Pitkin  County  v.  Brown,  2  Colo,  App. 

473,  31  Pac.  525.     150,  221,  223. 
Pitt  V.  Shew,  4  B.  &  Aid.  206.     550, 

636,  637. 
Pitts  V.  Hendrix,  6  Geo.  452.     341. 
Place   V.   Fagg,    4   Man.   &   Ry.    277, 

7  L,  J,  K,  B.  195.     391,  453,  537, 

539,  551. 
Plamondon  v.  Lefebvre,  3  Que.  L.  R. 

288.     239. 
Piatt  V.  Oneonta,  84  N.  T.  Supp.  699. 

88. 

Platto    V,    Gettleman,    85    Wis.    105, 
55  N.  W.  167.     521. 

Plumer  v.  Plumer,  30  N.  Ham.  558. 
180,    182,    380,    459,   460,   642. 


THE   BOTTOM    PAGES.] 

Poche  V.   Theriot,   23  La.  Ann.   137. 

78. 
Podlech  V.   Phelan,   13   Utah  333,   44 

Pac.  838.     139,  142,  143,  202,  219, 

223. 
Pocrtner  v.  Russel,  33  Wis.  193.     246, 

603,  607,  609. 
Pohlman   v.  DeBouchel,   32   La.  Ann. 

1158.     424. 
Poindexter  v.  Blackburn,  36  N.  Car. 

286.     355. 
Poindexter  v.  Henderson,  1  Miss.  176. 

601,  603. 
Polle  V.  Rouse,  73  Miss.   713,   19  So. 

481.     138,  482. 
Polley  V.   Johnson,   52   Kan.   478,   35 

Pac.  8,  23  L.  R.  A.  258.     364. 
Poison  V.   Degear,   12   Ont.   275,     84, 

484,   652. 
Pomeroy    v.    Bell,    118    Cal.    635,    50 

Pac.  683.     87,  384. 
Pomeroy  v.  Schwcnder,   2  Kan,  App. 

305,  43  Pac.  94,     418. 
Pond  Co.  V.  O 'Conner,  70  Minn.  266, 

73  N.  W.  159,  248.     29,  146. 
Pond   M.   Co.   V.   Robinson,   38   Minn. 

272,  37  N,  W,  99,     428, 
Poole  V,  Johnson,  62  la,  611,   17   N, 

W.   900,      423, 
Poole's   Case,   1   Salk.   368,   Holt   65. 

123,   133,   134,   139,   144,   148,   189, 

198,  266,  544,  547. 
Poor  V.  Oakman,  104  Mass.  309.     381. 
Pope  V.  Garrard,  39  Ga.  471.     76. 
Pope  V.  Jackson,  65  Me.  162.     26,  28, 

30,  417,  436. 
Pope  V.  Skinkle,   45  N.  J.  L.  39,  10 

Rep,  308.     32,  36,  112,  113,  651. 
Porch    V,    Fries,    18    N.    J.    Eq.    204. 

613. 
Porche   v.   Bodin,   28  La.    Ann.    761. 

346,  350. 

Porter  v.  Drew,  5  C.  P.  D.  143,  49 
L.  .L  C.  P.  482,  42  L.  T.  R,  151, 
14  Co.  Ct.  &  B.  397,  30  Eng.  R. 
733,  28  W.  R.  672,     243, 


TABLE  OF  CASES. 


Ixxix 


[BEFEHEXCES    ARE    TO 

Porter   v.   Hubbard,    134   Mass.    233. 

344. 
Porter  v.  Osmun,  98  N.  W.  859.   523. 
Porter  v.  Pittsburg  S.  Co.,  122  U.  S. 

267,  120  U.  S.  649,  7  S.  Ct.  1206. 

408. 
Portland  B.  Assn.  v.  Creamer,  34  N. 

J.    Eq.    107.      613. 
Post  V.   Kreisher,    103   N.  Y.   110,   8 

N.  E.  365,  32  Hun  49.     329. 
Post  V.  Miles,  7  N.  M.  317,  34  Pac. 

586.     33. 
Potter  V.  Cromwell,  40  N.  Y.  287,  100 

Am.  Dec.  485.     21,  28,  31,  61,  391, 

440. 
Potter  V.  Everett,  40  Mo.  App.  152. 

375. 
Potter  V.   Lambie,    142  Pa.   St.   535, 

21  Atl.  888.     342. 
Potter  V.  Rend,  201  Pa.  St.  318,  50 

Atl.   821.      98. 
Pottkamp  V,  Buss,  31  Pac.  1121.  397. 
Potts  V.  New  Jersey  Arms  Co.,  17  N. 

J.  Eq.   395.     21,  28,  462,  492. 
Poughkcepsie    Gas    Co.    v.    Citizens' 

Gas  Co.,  20  Hun  214.     104. 
Powell  V.  Bergner,  47   111.   App.   33. 

145. 
Powell  V.  Cheshire,  70  Ga.  357.    613. 
Powell  V.  McAsham,  28  Mo.  70.     149, 

187,  219,  231. 
Powell  V.  Munson  Mfg.  Co.,  3  Mason 
C.  C.  459.     134,  297,   298,   299. 

Powell  V.  Reese,  7  Ad.  &  E.  426.  597. 
Powell  V.  Rich,  41  111.  466.    339,  340, 

350,  371. 
Powell    V.    Rogers,    11    Til.    App.    08. 

407,  408,  423. 

Powell  V.  Smith,  2  Watts  126.    626, 
628. 

Powell  V.  Striker,  12  Law  Rep.  366. 

387,  405. 
Powers  V.  Clarkson,  17  Kan.  218.  374. 
Powers  V.  Dennison,  30  Vt.  752.    481, 

486. 


THE    BOTTOM    PAGES.] 

Powers    V.    Harris,    68    Ala.    409,    57 

Ala.   139.     87,   103,   116. 
Pratt   V.  Baker,   92   Hun   331,   36   N. 

Y.  Supp.  928,  72  N.  Y.  S.  &  R.  301. 

389,   439. 
Pratt   V.  Douglas,  38  N.  J.  Eq.  516. 

523. 
Pratt  V.  Keith,  5  Mont.  Co.  113.  141, 

413,  544. 
Pratte  v.  CofFraan,  27  Mo.  424.     350. 
Prescott  V.  Wells,  3  Nev.  82.    4,  122, 

647,  651. 
Prescott    &   A.    C.    Ry.    Co.    v.    Rees, 

3  Ariz.  317,  28  Pac.  1134.     88. 
President  of  Albany  &  B.  Road,  Re, 

94  App.  Div.  509,  87  N.  Y.  Supp. 

1104.     563. 
Preston  v.  Briggs,   16  Vt.   129.     122, 

198,   214,   378,  412,   649. 
Preston  v.  Ryan,  45  Mich.  174,  7  N. 

W.   819.      364. 
Preston    v.    Sabine    &c.    Ry.    Co.,    70 

Tex.  375,  7  S.  W.  825.     90, 
Price,  Ex  parte,  2  Mont.  Dea.  &  DeG. 

518,  11  L.  J.  N.  S.  B.  27,  6  Jur. 

327.      387,   399,   405,   406. 
Price  V.  Brayton,   19   la.   309.     308, 

337. 
Price  V.  Jenks,  14  Phila.  228,  37  Leg. 

Intel.  398.     33,  400,  442. 
Price  V.  Malott,  85  Ind.  266.     69,  96, 

97,  102,  103,  111,  144,  216,  489. 
Price  V.  Pickett,  21  Ala.  741.     357. 
Price   V.    Tawhao,    3    N.   Zea.   L.   R. 

Supr.  Ct.  145.     674. 
Price  V.  Weehawken  Co.,  31  N.  J.  Eq. 

31.     410. 
Priestly  v.  Johnson,  67  Mo.  632.    104, 

478. 
Prince  v.   Case,   10   Conn.   375.      106, 

107,  113,  481,  486. 
Pritchard  v.  Walker,  22  111.  App.  286. 

352. 

Proctor   V.    Oilson,    49    N.    Ham.    62. 

4()(1. 

Progress  Mach.   Co.  v.  Gratiot  Brick 


Ixxx 


TABLl-:  OF  CASES. 


[REFERENCES    ARE    TO 

Co.,    151    Mo.   501,   52   S.   W.   401. 

32,  426. 
Pronguey  v.  Gurnoy,  37  U.  C.  Q.  B. 

347,  36  U.  C.  Q.  B.  53.     2,  26,  35, 

140,   141,   144,   147,   155,   205,   256, 

259. 
Providcuce  &  W.  E.  E.  Co.  v.  Wright, 

2  B.  I.  459.     563. 
Providence  Gas  Co.  v,  Thurber,  2  E. 

T.  15,  55  Am.  Dec.  621.     22,  559, 

563. 
Pugh  V.  Arton,  L.  E.  8  Eq.  626,   38 

L.  J.  N.  S.  Ch.  619,  20  L.  T.  N.  S. 

865,  17  W.  E.  984.  198,  210,  607. 
Pullen  V.  Bell,  40  Me.  314.  386,  650. 
Pulsifer  v.  Douglass,  94  Me.  556,  48 

Atl.   118.     119. 
Pultenay  v.  Warren,  6  Ves.  73.     614. 
Pultney  v.  Shelton,  5  Ves.  147.     608. 
Punnett,    Ex   parte,    16    Ch.    D.    226, 

50  L.  J.  Ch.  212.     406,  409. 
Purner  v.  Piercy,  40  Md.  212,  17  Am. 

Eep.  591.     333,  373. 
Pusey  V.  Pusey,   1   Vern.   273.     321, 

324. 
Putnam  v.  White,  76  Me.  551.     375. 
Putney  v.   Day,   6   N.   Ham.   430,   25 

Am.  Dec.  470.     374. 
Pyle  V.  Pennock,  2  W.  &  S.  390,   37 

Am.  Dec.  517.     25,  46,  455. 
Pyne  v.  Dor,  1  Term  56.     266. 

Pyot  V.  Saint  John,  Cro.  Jac.  329. 
234,   652. 

Quillen  v.  Betts,  1  Pennewill  53,  39 
Atl.  595.     99. 

Quinby  v.  Manhattan  Cloth  Co.,  24 
N.  J.  Eq.  260.  21,  28,  387,  389, 
390,  391,  470. 

Quincy,  Ex  parte,  1  Atk.  477.  189, 
190,  198,  399,  512,  607,  647. 

Eadcliffe  v.  D  'Oyly,  2  Term  630.  293. 
Eaddin    v.    Arnold,    116    Mass.    270. 
122,  647,  651. 

Eaddin  v.  Kidder,  111  Mass.  44.  106, 
124. 


THE   BOTTOM    PAGES.] 

Eadcbaugh  v.  Tacoma  &  P.  E.  R.  Co., 

8  Wash.  570,  36  Pac.  460.     50. 
Hadcy  v.  McChirdy,  58  Atl.  558.     257. 
Eaht  V.  Attrill,  106  N.  Y.  423,  13  N. 

K.  282.     409. 
Ealnvay  S.  Inst.  v.  Irving  B.  Ch.,  36 

N.  J.  Eq.  61,  15  Eep.  632,  27  Alb. 

Law  J.  252,  17  W.  Jur.  286.     450. 
Eailroad  Co.  v.  James,  73  U.  S.  750. 

48. 
Ealston  v.  Ealston,  3  G.  Greene  533. 

351. 
Eandall  v.  Elwell,  52  N.  Y.  521,  11 

Am.   E.   747.     50,   541,   566. 
Eandolph  v.  Gwynne,  7  N.  J.  Eq.  88, 

51  Am.  Dec.  265.     388,  445,  446. 
Eankin    v.    Kinsey,    7    111.    App.    215. 

348. 
Eanwick   v.    Eenwick,    1   Bradf.    234. 

527. 
Rardin  v.  Baldwin,  9  Kan.  App.  516. 

346. 
Easor  v.  Quails,  4  Blackf.  286.     353. 
Eathbone   v.    Boyd,    30   Kan.    485,    2 

Pac.  664.     361. 
Eaventas  v.  Green,  57  Cal.  254.    364. 
Eawlings   v.   Hunt,    90    N.   Car.    270. 

367. 
Eayman   v.   Henderson   Nat.   Bk.,    98 

Ky.   748.     409. 
Eaymond   v.    Andrews,    6    Cush.    265. 

628. 
Eaymond  v.  White,   7  Cow.   319.    20, 

296,    384,    481. 
Ecad  V.  Horner,  90  Mich.  152,  51  N. 

W.   207.     478. 
Read  v.  Saint  Ambrose  Co.,  137  Pa. 

St.   320,  20  Atl.  1002.     87. 
Eeadfield  Tel.  Co.  v.  Cyr,  95  Me.  287, 

49  Atl.  1047.     32,  113,  547. 
Eeardon   v.   Murphy,   163   Mass.   501, 

40   N.   E.   854.      11. 
Eedfern  v.  Smith,  2  Bing.  262.    590. 
Eedlon   v.    Barker,    4   Kan.    445,    96 

Am.  Dee.  180.     28,  394. 
Reed  v.  Johnson,  14  111.  257.     369. 


TABLE  OF  CASES. 


Ixxxi 


[REFERENCES    ARE    TO 

Reed  v.  Reed,  68  Me.  568.     92,  265. 
Reed  v.  Swan,  133  Mo.  100,  34  S.  W. 

483.     340,   346,   520. 
Reeder  v.  Sayre,  70  N.  Y.  180.     353. 
Reese  v.  Jared,   15  Ind.  142.     620. 
Reformed  D.   Ch.   of  X.  Y.  v.  Park- 
hurst,  4  Bosw.  491.     529. 
Regina    v.    Bainbridge    Union,    7    Ir. 

Jur.  332.     574. 
Regina    v.    Brownlow,    11    Ad.    &    E. 

119.     680. 
Regina   v.   Brumby,   3   C.   &  K.   315. 

673. 
Regina  v.  Brummitt,  8  Cox  C.  C.  413, 

L.  &  C.  9,  3  L.  T.  N.  S.  679,  9  W. 

R.  257.     673. 
Regina  v.  Cambridge  G.  L.  Co.,  8  A. 

&  E,  73,  3  N.  &  P.  262.     569. 
Regina  v.  Clinton,   Ir.  R.  4  C.  L.  6. 

668. 
Regina  v.   Downing,   23  L.   T.   N.   S. 

398,     668. 
Regina  v.  Eastern  C.  Ry.  Co.,  2  Dowl. 

Pr.  C.  N.  S.  293.     680. 
Regina  v.  East  L.  W.  Co.,  18  Q.  B. 

705,  21  L.  J.  M.  C.  174,  17  Q.  B. 

512,  21  L.  J.  M.  C.  49.     568,  569, 

570. 
Regina    v.    Edwards,    10    Cox    Mag. 

452,   13   Cox   Crim.   384.     670. 
Regina  v.  Fisher,  10  Cox  C.  C.  146. 

675. 
Regina  v.  Foley,  17  Cox  Cr.  142.   669. 
Regina  v.  Gooch,  8  C.  &  P.  293.    672. 
Regina  v.  Gray,  9  Cox  C.  C.  417.  675. 
Regina  v.  Guest,  7  Ad.  &  E.  951,  2 

N.  &  P.  663,  W.  W.  &  D.  651.    572, 

573. 

Regina  v.  TTarris,  11  Mod.  113,  Holt 
353.     668. 

Regina  v.  Ilaslam,  17  Q.  B.  224.   574, 
578. 

Regina  v.  Howell,  9  C.  &  P.  437.   676, 
677. 

Regina   v.   .Tones,    7    Cox    C.    C.    498, 


THE   BOTTOM    PAGES.] 

Dears.  &  B.  C.  C.  555,  4  Jur.  N.  S. 
394,  27  L.  J.  M.  C.  171.     673. 
Regina  v.  Lee,  L.  R.  1  Q.  B.  241,  7 

B.  &  S.  188,  12  Jur.  N.  S.  225,  35 
L.  J.  M.  C.  105.  446,  555,  577, 
579. 

Regina  v.  Leith,  1  Ell.  &  Bl.  121.  570, 

572. 
Regina  v.  Metropolitan  Bd.  of  Wks., 

L.  R.  4  Q.  B.  26.     582. 
Regina    v.    Midland    Ry.    Co.,    L.    R. 

10  Q.  B.  389,  9  Cox  Mag.  474.    569, 

570. 
Regina   v.    Morrish,    32   L.    J.    M.   C. 

245,  10  Jur.  N.  S.  71.     568. 
Regina  v.  Morrison,  1  Ell.  &  Bl.  150. 

571. 
Regina  v.  Norris,  9  C.  &  P.  241.    675. 
Regina    v.    North    Staffordshire    Ry. 

Co.,  30  L.  J.  M.  C.  68,  7  Jur.  N.  S. 

363,   3   Ell.   &  Ell.   392.     570,   572, 

574,   576,   577,   578,   580. 
Regina  v.  Pembleton,  43  L.  J.  M.  C. 

91,   12   Cox  C.   C.   607,  2  L.  R.  C. 

C.  119.     674,   675. 

Regina  v.  Rice,  28  L.  J.  M.  C.  64, 
Bell's  C.  C.  87,  5  Jur.  N.  S.  273, 
7  W.  R.  232,  32  L.  T.  323,  8  Cox 
C.  C.  119.     667,  672. 

Regina  v.  Smith,  6  Cox  C.  C.  198. 
674. 

Regina  v.  Southampton  D.  Co.,  14  Q. 
B.   587.     574,   579,   580. 

Regina  v.  Southwark  &  V.  W.  Co.,  6 
E.  &  B.  1008.     569. 

Regina  v.  West  Middlesex  Water- 
works, 1  Ell.  &  Ell.  716.     568,  569. 

Regina  v.  Wheeler,  6  Mod.  187.  46, 
678,   679. 

Regina  v.  Whittingham,  9  C.  &  P. 
234.     675. 

Rcid   V.  Blades,  5  Taunt.   212.  512. 

Roid   V.  Kirk,   12  Rich.  L.  54.  118, 

148,   193. 

Reiff  V.  Roiff,  64  Pa.  St.  134.  334. 


Ixxxii 


TABLE  OF  CASES. 


[IIEFEIIEXCES    AUK    TO    THE    IlOTTOXl    I'AOIOS.J 


Keilly  v.    Hiulson,   62   Mo,   383.     36, 

428. 
Keilly  v.  Kiiigland,  39  la.  106,  Pat- 
tee's   Illus.   Ca.   88,   44   Iowa   422. 
358,  363. 
Eeily  v.  Carter,  75  Mich.  798,  23  So. 

435.     346. 
Eelyea  v.  Beaver,  34  Barb.  547.     100. 
Rcnic'k  v.  Boyd,  99  Pa.  St.  555.    626. 
Eeuwick    v.    Eenwiek,    1    Bradf.    234. 

531. 
Eex    V.    Bartlett,    Deae.    C.   L.    1517. 

675. 
Eex  V.  Bath,  14  East  609.     568. 
Eex  V.  Bell,   7  Term  598.     567,  568, 

570. 
Eex  V.  Bilston,  5  B.  &  C.  851,  8  D. 

&  R.  734.     576,  577,  581. 
Eex   V.   Birmington   &   S.   G.   L.   Co., 
6  A.  &  E.  634,  1  N.  &  P.  691.     569, 
573,   576. 
Eex  V.   Birmingham  G.  L.   Co.,   1   B. 

&  C.  506,  2  D.  &  E.  735.  569. 
Eex  V.  Bliek,  4  C.  &  P.  377.  673. 
Eex  V.  Brighton  Gas  L.  Co.,  5  B.  & 

C.  466,  8  D.  &  R.  308.     568. 
Eex  V.  Brooks,  4  C.  &  P.  131.     328, 

330. 
Eex  V.  Chelsea  W.  Co.,  5  B.  &  Ad. 

156.     568,  569. 
Eex  V.  Chubb,  Deac.  C.  L.  1518.  675. 
Eex  V.  Crosse,  1  Sid.  207,  1  Lev.  136. 

46,    678. 
Eex  V.  Crutchley,  5  C.  &  P.  133.     675. 
Eex    V.    Davis,    2    East's   P.    C.    593. 

671. 
Eex  V.  Dodderhill,  8  Term  449.    583. 
Eex   v.   Dowsey,   29   Vict.   L.   R.   453. 

667. 
Eex  v.   Fidler,   4  C.  &  P.  449.     675. 
Eex    V.    Finch,    1    Mood.    C.    C.    418. 
673. 

Eex  V.  Granville,  9  B.  &  C.  188.    570, 
577,  582. 

Eex   V.    Hammersmith,    8    Term    450. 
583. 


Rex   V.   Hedges,   1   Leach  C.  C.   240. 

671,   672. 
Rex  V.  Hickman,  1  Leach  C.  C.  358, 

2  East's  P.  C.  593.     671. 
Rex  V.  Hill,  R.  &  R.  C.  C.  483.     674. 
Rex  V.  Hodges,  M.  &  M.  341.     673. 
Rex  V.  Hogg,  1  Term  721,  Cald.  662. 

575,   577. 
Rex   V.   Hungerford   M.   Co.,   4   B.   & 

Ad.  596.     2^3. 
Rex   V.    Hutchins,   Deac.   C.   L.    1517. 

675. 
Rex   V.    Inhabitants   of   St.   Dunstan, 

4  B.  &  C.  586.     310. 
Rex  V.  Isley,  1  Leach  C.  C.  360.    671. 
Rex   V.   Jones.     673. 
Rex    V.    Londonthorpe,    6    Term    377. 

15,  583,  585. 
Rex  V.  Mackerel,  4  C.  &  P.  448.    675, 
Rex   V.    Manchester   &   S.   W.   Co.,    1 

B.  &  C.  630.     569. 

Rex  V.   Mellor,   2  East  189.     583. 
Rex  V.  Mersey  &  I.  Nav.  Co.,  9  B.  & 

C.  95.     568. 

Rex  V.  Millar,  7  C.  &  P.  665.     667. 
Rex  V.   Minworth,   2   East   198.     583. 
Rex  V,  Mosley,  2  B.  &  C.  226.     569. 
Rex  V.   Munday,   2   Leach  C.   C.   991. 

672. 
Rex  V.  Norris,  Russ.  &  R.  C.  CI.  69. 

67L 
Rex  V.  North  Bedburn,  Conset's  Bott. 

155.     584. 
Rex  V.   Otley,   1  B.  &  Ad.   161.     16, 

585. 
Rex  V.  Paine,  7  C.  &  P.  135.     677. 
Rex  V.   Parker,   2   East's   P.   C.   592. 

67L 
Rex  V.  Piddletrenthide,  3  Term   772. 

584. 
Rex  V.  Reece,  Monmouth  Leut.  Assn. 

672. 

Eex  V.  Richards,  Euss.  &  R.  C.  C.  28. 
672. 

Rex  V.  Rochdale  Co.,  1   M.  &  S.  634, 
568. 


TABLE  OF  CASES. 


Ixxxiii 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Rex  V.  Saint  Dunstan,  4  B.  &  C.  686. 

197,  585. 
Rex    V.    St.    Nicholas     Gloucester,     1 

Term  723,  Cald.  262,  3  Dane's  Abr. 

157.     50,  575,  576. 
Rex   V.    Senior,    2    Leach   C.    C.    559, 

2  East's  P.  C.  593.     671. 
Rex  V.  Shrewsbury,  3  B.  &  Ad.  216. 

569. 
Rex  V,  Tardebigg,  1  East  528.    5S3. 
Rex  V.  Taylor,  Russ.  &  Ry.  373.    673, 

675. 
Rex   V.   Topping,   McClell.   &   Y.   544. 

235,  545. 
Rex   V.    Tracey,   R.   &   R.   C.   C.   452. 

674. 
Rex  V.  Trent  &  M.  Nav.  Co.,  4  B.  & 

C.  57.     568,  570. 
Rex  V.  Walker,  R.  &  M.  155.     316. 
Rex  V.  Webb,  1  Mood.  C.  C.  431.   673. 
Rex   V.   Webster,    1   Leach   C.   C.    14. 

668,  670. 
Rex  V.  West,  Deac.  C.  L.  1518.    675. 
Rex  V.  Whateley,  4  M.  &  R.  431.   675. 
Rex  V.  Worrali,  7  C.  &  P.  516.     672. 
Reyman    v.    Henderson    Nat.    Bk.,    98 

Ky.  748,  17  Ky.  L.  R.  1291,  34  S. 

W.  697.     26,  388,  407,  436,  462. 
Reyman  v.  Mosher,  71  Ind.  596.    435. 
Reynal,    Ex    parte,    2    Mont.    Dea.    & 

DeG.   443.      4,   198,   297,   473,   504, 

505,  511,  537,  649,  667. 
Reynolds  v.   Ashby    [1903],    1   K.   B. 

87,  72  L.  J.  K.  B.  51,  87  L.  T.  R. 

640,   51    W.   R.   405.      37,   61,   403, 

408,  443. 
Reynolds  v.  Canal  &  B.  Co.  of  N.  O., 

30  Ark.  520.     310. 
Reynolds  v.   Dechman,   2   Nova  S.  L. 

R.   459.     35,   382,   642,   643. 
Reynolds  v.  Deckman,  2  Can.  Law  T. 

261.     74,  643. 

Reynolds  v.  Reynolds,  48  Hun  142j  15 
N.   Y.   St.   R.  464.     358,  372. 

Reynolds  v.  Shuler,  5  Cow.  323.     140, 
551. 


Rej-nolds   v.   Williams,   1   Tex.  Repts. 

311.     631. 
Reysen  v.  Roate,  92  Wis.  543,  66  N. 

W.  599.     83. 
Rhoda    V.    Alameda    County,    58    Cal. 

357,  8  Pac.  C.  Law  J.  137.     639. 
Rice  V.  Adams,  4  Harring.  332.    537. 
Eice  V.   Dewey,   54   Barb.   455.     407. 
Rice    V.    Looney,    81    111.    App.    537. 

602. 
Rich   V.   Donovan,   81   Mo.   App.   184. 

66. 
Rich  V.  Zeilsdorff,  22  Wis.  544.     375. 
Richards  v.  Gilbert,  116  Ga.   382,  42 

S.    E.    715.      399,   470,   483. 
Richards  v.  Knight,  78  la.  69,  42  N, 

W.  584,  4  L.  R.  A.  453.     350. 
Richards  v.   Morey,   133  Cal.  437,  65 

Pac.   886.     87,  620. 
Richards   v.   Wapello   County,   48    la. 

507.  563. 

Richardson  v.  Ardley,  38  L.  J.  Ch, 

508.  602,  605,  606,  608,  638. 
Richardson  v.  Borden,  42  Miss.  71, 

2  Am.  Rep.  595.  444. 
Richardson  v.  Copeland,  6  Gray  536, 

66  Am.  Dec.  423.  420,  647. 
Richardson  v.  Koch,  81  Mo.  264.  427. 
Richardson  v.  Ranney,  2  U.  C.  C.  C. 

P.  460.  146. 

Richardson  v.  York,  14  Me.  74.    618. 
Richmond  v.   Freemans   Nat.   Bk.,   86 

App.  Div.  152,  83  N.  Y.  Supp.  832. 

29,  425,  440. 

Richmond  v.  State,  5  Ind.  334.  397, 
473. 

Richmond  &  D.  R.  R.  Co.  v.  Ala- 
mance, 84  N.  Car.  504.     558. 

Richmyer  v.  Morss,  3  Keys  349,  4 
Abb.  Ct.  App.  Dec.  55,  5  Abb.  Pr. 
N.  S.  44,  37  How.  Pr.  388.  86,  393. 

Richtmyer  v.  Morss,  3  Keyes  349,  4 
Abb.  Ct.  App.  Dec.  55,  5  Abb.  Pr. 
N.  S.  44,  37  How.  Pr.  388.  86, 
393. 


Ixxxiv 


TABLE  OF  CASES. 


[KEFERENCES  ARE  TO  TUB  BOTTOM  PAGES.] 


Rickcr  v.  American  L.  &  T.  Co.,  140 

Mass.  34G,  5  N.  E.  284.     566. 
Kieketts  v.  Dorrel,  55  lud.  470.     620. 
Kidgeway    Stove    Co.    v.     Way,     141 

Mass.    557,    6    N.    E.    714,    25   Am. 

Law   Reg.   660,   5   East  307,   2   N. 

Eng.  363.     32,  389,  486,  487. 
Riewe  v.  McCormick,  11  Neb.  261,  9 

N.  W.  88.     67,  626. 
Rigg  V.  Lonsdale,  1  H.  &  N.  923,  11 

Exch.  654.     328. 
Riley  v.  Boston  Wat.  P.  Co.,  11  Cush. 

11.     64,   642,   656. 
Ring   V.   Billings,    51   111.    475.      341, 

650. 
Rinzel   v.   Stumpf,   116   Wis.   287,   93 

X.  W.  36.     33,  429,  430. 
Ripley  v.  Page,  12  Vt.  353.    53,  454, 

516. 
Ritchie  v.  Kansas,  N.  &  D.  Ry.  Co., 

55   Kan.   36,   39  Pac.   718.     89. 
Ritchie  v.  McAllister,  14  Pa.  Co.  267. 

1,  25,   30,   538. 
Ritchmyer  v.   Morss,   3  Keyes  349,   4 

Abb.  Ct.  App.  Dec.  55,  5  Abb.  Pr. 

N.    S.   44,    37   How.   Pr.   388.      86, 

393. 
Ritter  v.   Cost,   99  Ind.   80.     424. 
Robbing  v.   Farwell,   193   Pa.   St.   37, 

44  Atl.  260.     373,  375. 
Robbins  v.  Oldham,  1  Duvall  28.    372. 
Robbins  v.  Sackett,  23  Kan.  301.  643. 
Robens  v.  Barrett,  66  Hun  189,  21  N. 

Y.  Supp.   124.     331. 
Roberts  v.  Barker,  1  Cr.  &  M.  808,  3 

Tyrwh.   945.     184. 
Roberts  v.  Dauphin  Dep.  Bk.,  19  Pa. 

St.  71.     387,  406,  411,  595,  624. 
Roberts  v.  Kain,  6  Robt.  354.     203. 

Robertson   v.   Corsett,   39   Mich.   777. 

109,  390,  400,  440. 
Robertson    v.    Meadors,    73    Ind.    43. 

607. 
Robertson    v.    Phillips,    3    G.    Greene 

220.  434. 


Robinson  v.  Clapp,  65  Conn.  365,  32 

Atl.  939,  67  Conn.  538,  35  Atl.  504. 

101. 
Robinson  v.  Cook,   6   Ont.  590.     .^93, 

466,   472,   610. 
Robinson   v,   Ezzell,   72   N.   Car.   231. 

370. 
Robinson  v.  Fee,  42  U.  C.  Q.  B.  448. 

346. 
Robinson  v.  Learoyd,  7  M.  «fe  W.  48. 

12,    13,   583. 
Robinson  v.  Litton,  3  Atk.  209.    608, 

611. 
Robinson    v.    Mauldin,    11    Ala.    977. 

365. 
Robinson    v.    Preswick,    3    Edw.    Ch. 

246.     378,   609,  614. 
Robinson  v.  Russell,  24  Cal.  467.  594, 

602,   609,   611. 
Robinson  v.  Wright,  9  D.  C.  54.     19, 

192. 
Roby  V.  University,  36  Vt.  564.     397, 

425. 
Roddy   V.   Brick,   42   N.   J.   Eq.    218, 

6   Atl.    807,   4    Cent.    850.      29,    54, 

388,   390,   393,   408,   434,   436,   438, 

439. 

Rodwell  V.  Phillips,  9  M.  &  W.  501. 
375. 

Roffey   V.   Henderson,    17   Q.   B.   574, 

16  Jur.  84,  21  L.  J.  Q.  B.  49.    205, 

222,  647,  649. 
Rogers  v.  Brokaw,  25  N.  J.  Eq.  496, 

28,  31,  55,  56,  435,  442,  445. 
Rogers  v.  Cox,  96  Ind.  157.     66,  214, 

514. 

Rogers  v.  Crow,  40  Mo.  96,  93  Am. 
Dec.  299.  28,  38,  277,  399,  439, 
448,  450. 

Rogers  v.  Elliott,  59  N.  Ham.  201,  47 
Am.  R.  192.     334,  542. 

Rogers  v.  Gilinger,  30  Pa.  St.  185, 
72  Am.  Dec.  694.  4,  62,  64,  70, 
458. 

Rogers  v.  Kerr,  42  Ark.  100.     626. 


TABLE  OF  CASES. 


Ixxxv 


[KEFEREXCES  ABE  TO  THE  BOTTOM  PAGES.] 


Kogers  v.   Ontario  Bk.^   21   Ont.  416. 

407,   538. 
Rogers  v.  Prattville  Mfg.  Co.,  81  Ala. 

483,   1   So.   643,   60  Am.  Kep.   171. 

28. 
Rogers  v.  Randall,  29  Mich.  41.     88. 
Rogers  v.  Smith,  4  Pa.  St.  93.     397, 

473. 
Rogers  v.  Snow,  118  Mass.  118.     75. 
Rogers   v.    Woodbury,    15    Pick.    156. 

103,  638. 
Rolleston  v.   New,   4  Kay  &  J.   640. 

533. 
Rooney    v.    Crary,    8    111.    App.    329. 

230,   260. 
Rooney   v.   Stearns,   17   N.   Y.   Wkly. 

Dig.  322.     144,   187. 
Roops  V.   Barker,  4   Pick.   239.     454. 
Roper  Lumb.  Co.  v.  Wallace,  93  N. 

Car.  22.     601. 
Rose  V.  Baltimore,  51  Md.  256.     326. 
Rose  V.  Hays.     591. 
Rose  V.  Hope,  22  U.  C.  C.  P.  482.    66, 

486. 
Rosenau   v.   Syring,   25   Ore.   386,   35 

Pac.   844.     140,   649. 
Roseville  Min.  Co.  v.  Iowa  Gulch  Co., 

15   Colo.   29,   24  Pac.   920,   22  Am. 

St,  Rep.  373.     28,  94,  538. 
Boss   V.    Campbell,   9   Colo.   App.    38, 

47  Pac.  465.     143,  260. 
Ross  V.  Zuntz,  36  La.  Ann.  888.    221. 
Ross's    App.,    9    Pa.    St.    491.      384, 

513. 
Rotan  G.  Co.  v.  Dowlin,  77  S.  W.  430. 

30,  92,  394. 
Roth   V.   Collins,   109   la.   501,    80   N. 

W.   .543.     137,   141,   142,   145. 
Rotho  V.  Bcllingrath,  71  Ala.  55.    107. 
Rounsaville    v.    Hazen,   39   Kan.   610, 

18  Pac.  689.     424. 

Rountreo  v.  Britt,  94  N.  Car.  104. 
367. 

Rowand  v.  Anderson,  33  Kan.  264,  6 
Pac.  255,  52  Am.  Rep.  529.  103, 
486. 


Eowell  V.  Klein,  44  Ind.  290,  15  Am. 

E.   285.     360,   361,   628. 
Rowland  v.  Morgan,  2  Phill.  Ch.  764, 

6  Hare  463.     322. 
Rowland  v.   Sworts,   17   N.   Y.   Supp. 

399,  43  N.  Y.  St.  R.  951.     119. 
Rowland  v.  West,  62  Hun  583,  17  N. 

Y.  Supp.  330.     33,  421,  489. 
Rowls  V.   Cells,   Cowp.  453.     567. 
Rowney's  Case,  2  Vern.  323,  Eq.  Ca. 

Ab.  69.     352. 
Eoxburghe  v.  Roberton,  2  Bligh  156. 

166. 
Royce  v.  Latshaw,  15  Colo.  App.  420, 

62  Pac.  627.     10,  19,  36,  109,  136, 

164,   219,   260,   434,  482. 
Eoyston  v.   Eccleston,   Cro.  Jac.   654. 

659. 
Euckman   v.    Cutwater,    28   N.   J.   L. 

581.     179,  181,  184,  460. 
Rudd  V.  Anderson,  12  Ky.  L.  R.  489, 

14  S.  W.  340.     143. 
Rudd  V.  Littell,  20  Ky.  L.  R.  158,  45 

S.  W.  451,  46  S.  W.  3.     524. 
Rudge  V.  Winnall,  12  Beav.  357.    350, 

351. 
Ruffey  V.   Henderson,  17  Q.  B.  574, 

16    Jur.    84,    21    L.    J.    Q.    B.    49. 

222,  647,  649. 
Eufford  V.  Bishop,  5  Russ.  346,  7  L. 

J.  Ch.  108.     456,  504,  509,  512. 
Ruggles  V.  First  Nat.  Bk.,  43  Mich. 

192,  5  N.  W,  257.     346. 
Rush  County  v.  Stubbs,  25  Kan.  322. 

1(14,   lOf),  107,  622. 

Russell  V.  Grant,  122  Mo.  161,  26  S. 

W.    958.     408. 

Eussell  V.  Moore,  8  L.  R.  Ire.  318. 
67,  359. 

Russell  V.  Myers,  32  Mich.  522.    376. 

Russell  V.  New  Haven,  51  Conn.  259. 
558,  561. 

Russell  V.  Richards,  10  Me.  429,  11 
Me.  371,  25  Am.  Dec.  254.  386. 
483,  650. 


Ixxxvi 


TABLE  OF  CASES. 


[itEFEKENCES    A«E   TO    TUB    BOTTOM    PAGES.] 


Eussell  V.   Stevens,   70   Miss.   685,   V2 

So.   830.      367. 
Kutgers  v.  Hunter,  6  John.  Ch.   215. 

532. 
Kyall   V.   Eolle,    1    Atk.    165,   1    Ves. 

Sr.  348.     399,  504,  507,  512. 
Eyder  v.  Faxon,   171   Mass.   206,   50 

N.   E.   631,   68  Am.  St.   Kep.   417. 

136,   219,  221. 
Sabin   v.   Harkness,  4   N.   Ham.   415. 

324. 
Sachs  V.  Henderson   [1902],  1  K.  B. 

612,  71  L.  J.  K.  B.  392,  86  L.  T. 

E.  437,  50  W.  E.  418.     404. 
Sackett  v.  Sackett,  8  Pick.  309.    591. 
Safford  v.  Annis,  7  Me.  168.     376. 
Sagar    v.    Eckert,    3    111.    App.    412. 

153,   202,   204,   214,   540. 
Sainsbury   v.   Matthews,   4   M.   &   W. 

343.     370,  371. 
Saint  V.  Pilley,  L.  E.   10  Exch.   137. 

208. 
St.    Botolph,    Aldersgate    Without    v. 

Parishioners  [1900],  P.  69.     11. 
Saint  Catherines  L.  Co.,  Ee,  30  Can. 

L.  J.  205.     560. 
Saint   Croix  W.   Co.   v.   Milltown,   31 

N.  B.  452.     560. 
Saint  John  v.  Sears,  28  N.  B.  1,  18 

Can.  702.     533. 
Saint  John  v.  Swain,  14  N.  Y.  Supp. 

743.     346. 
Saint  Johnsbury  &  L.  C.  E.  E.  Co.  v. 

Willard,  61  Vt.  134,  17  Atl.  38.   89, 

410. 
St.   Joseph   Co.   V.   Wilson,    133   Ind. 

465,  33  N.  E.  113.     12,  69,  502. 
Saint  L.,  K.   &  S.   W.  E.  E.   Co.  v. 

Nyce,  61  Kan.  394;  59  Pac.  1040, 
48  L.  E.  A.  241.     89. 
Saint  Louis  E.  Co.  v.  Carroll,  72  Mo. 

App.  315.     6,  32,  36,  425,  428. 
Salem    Nat.    Bk.    v.   White,    159    111. 

136,  42  N.  E.  312.     410. 
Salimonie  M.  Co.  v.  Wagner,  2  Ind. 
App.  81,  28  N.  E.  158.     337,  369. 


SuUado  V.  James,  6  Pa.  St.  144.    342. 

Siillcy   V.   Eobinson,   96    Me.   474,   52 

Atl.  930,  59  L.  E.  A.  279,  90  Am. 

St.  Eep.  410.     113,  214. 

Salmon  v.  Clagett,  3  Bland.  Ch.  180. 

610. 
Salmon  v.  Fewell,  17  Mo.  App.  118. 

346,  369. 
Salmon  v.  Watson,  4  Moore  73.    663. 
Salter  v.  Sample,  71  111.  430.     32,  55, 

621. 
Salt  Lake  County  v.  Board  of  Equal- 
ization, 18  Utah  172,  55  Pac.  378. 
50,  566. 
Salt  L.   H.  Co.  V.   Chainman  M.  Co., 

128  Fed.  509.     426. 

Sample  v.  Broadwell,  87  111.  617.   624. 

Sampson    v,    Camperdown    Mills,    64 

Fed.   939.     13,   122,   149,   200,   207, 

434. 

Samson  v.  Eose,  65  N.  Y.  411.     360, 

363. 
San   Antonio   B.   Assn.   v.   Arctic   M. 
Co.,  81  Tex.  99,  16  S.  W.  797.    480. 
Sanborn   v,   Hoyt,    24   Me.    118.      66, 

398. 
Sanders  v.  Davis,  15  Q.  B.  D.  218,  54 
L.   J.    Q.   B.    576,    38    Eng.    Eepts. 
97,  33  W.  E.  655.     413. 
Sanders  v.  Ellington,  77  N.  Car.  255. 

353. 
Sanders  v.  Wilson,  34  Vt.   318.    422, 
Sands  v.  Pfeiffer,  10  Cal.  258.     378, 

387,   406,    618,    619. 
Sanford   v.    Eastabutchie   L.   Co.,    36 

So.   10.     376. 
San    Francisco    v.    McGinn,    67    Cal. 

110,  7  Pac.  187.     558. 
San  Francisco  &  N.  P.  E.  E.  Co.  v. 
Taylor,  86  Cal.  246,  24  Pac.  1027. 
89. 
San  Francisco  Brew.  v.  Schurtz,  104 

Cal.  420,  38  Pac.  92.     122,  403. 
Sangamon  &c.  E.  E.  Co.  v.  Morgan, 
14  111.   163,  56  Am.  Dec.  497.     48, 
50,  566. 


TABLE  OF  CASES. 


Ixxxvii 


[REFERENCES    ARE    TO 

Sanitary  D.  of  Chi.  v.  Cook,  169  111. 

184,  48  N.  E.  461,  39  L.  R.  A. 

369,  61  Am.  St.  Eep.  161,  67  111. 

App.  286.     255,  520. 
Sattler   v.   Opperman,   30   Pitts.   Leg. 

J.  205.     217,  649. 
Saunders    v.    Stallings,    5    Heisk.    65. 

109. 
Sawyer  v.  Long,  86  Me.  541,  30  Atl. 

111.     8,  13,  95. 
Sawyer  v.  Middleborough  Co.,  13  Ky. 

L.   R.   550,    17   S.   W.   444.     618. 
Sawyer   v.    Twiss,    26   N.    Ham.    348. 

179,  180,  181,  454. 
Sayles  v.  National  W.  Co.,  16  N.  Y. 

Supp.   555,   41   N.   Y.   St.   R.    856. 

104,  452. 
Scales  V.  Wiley,  68  Vt.  39,  33  Atl. 

771.     515. 
Scanland   v.   Musgrove,    91    111.   App. 

184.     641. 
Scannell  v,  Beauvais,  38  La.  A.  217. 

427. 
Scannell  v.  Hub.  Brew.  Co.,  178  Mass. 

282,  59  N.  E.  628.     427. 
Scannevin  v.  Consolidated  W,  Co.,  55 

Atl.  754.     429. 
Scarth,  Ex  parte,  9  L.  J.  N,  S.  B. 

35,  1  Mont.  Dea.  &  DeG.  240.   413, 

481,   504. 
Scarth    v.    Ontario    P.    Co.,    24    Ont. 

446,     211,  421,  622. 
Schaefer- Meyer  B.   Co.   v.   Meyer,    19 

Ky.  L.  R.  411,  40  S.  W.  685.    154, 

155. 
Schalk   V.   Kingslcy,  42   N.  J.  L.   32. 

73. 
Schamberger   v.    State,   68   Ala.    543. 

671. 
Schaper  v.  Bibb,  71  Md.  145,  17  Atl. 

935.     28,  428. 

Scheifele   v.    Schmitz,    42    N.   J.    Eq. 

700,  11  Atl.  257,  1  Atl.  698,  1  Cent. 

676.     388,  389,  393,  433,  436,  543. 
Schellonbcrg   v.   Detroit  H.   Co.,    130 

Mich.  439,  90  N.  W.  47,  57  L.  R. 


THE   BOTTOM    PAGES.] 

A.  632,  97  Am.  St.  R.  489.     70,  85, 

104. 
Schenck  v.  Uber,  81  Pa.  St.  31.    429. 
Sehergens    v.    Wetzel,    12    Mo.    App. 

596.     641. 
Sehermerhorn   v.   Buell,    4   Den.    422. 

631,  633. 
Schimpf  V.  Rhodewald,  62  Neb.  105, 

86  N.  W.  908.     284,  474. 
Schlemmer    v.    North,    32    Mo.    206. 

193,  195,  196. 
Schmaltz  v.  York  Mfg.  Co.,  204  Pa. 

St.    1,    53    Atl.    522,    59    L.    R.    A. 

907.     393,  486,   487. 
Schmidt  v.  Vogt,  8  Ore.  344.     435. 
Schmidt   v.   Williams,   72   la.   317,   33 

N.  W.  693.     360. 
Schneider  v.   Schneider,   6   Ohio   Dec. 

106,  4  Ohio  N.  P.  144.     29,  60. 
Schoelkopf  v.  Coatsworth,   166  N.  Y. 

77,  59  N.  E.  710,  55  App.  Div.  331, 

66  N.  Y.  Supp.  979.     533. 
Schofield  V.  Stout,  59  Ga.  537.     426. 
School  D.  V.  Milligan,  88  Pa.  St.  96. 

513. 
Schoonover  v.  Bright,  24  W.  Va.  698. 

602. 
Schoonover    v.    Irwin,    58    Ind.    287. 

214. 
Schreiber  v.  Chicago  &  E.  R.  R.  Co., 

115  111.  340,  3  N.  E.  427.     481. 

Schreiber  v.  Malcolm,  8  Gr.  Ch.  433. 
30,  434,  441. 

Schreyer  v.  .Jordan,   58   N.   Y.   Supp. 

206,  27  Misc.  643.     33,  452. 
Schroeder  v.  DeGraff,   28   Minn.   299, 

9  N.  W.  857.     91. 

Schuchardt  v.  Mayor  of  N.  Y.,  53  N. 
Y.  202.     61,  66,  380. 

Schulcnberg    v.    Harriman,    88   U.    S. 
44.     70. 

Schulcnberg  v.  Haydon,  146  Mo.  583, 
48  S.   W.  472.     408. 

Schulcnberg  v.  Prairie  Inst.,  65  Mo. 
295. 


Ixxxviii 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Schumacher  v.  Edwanl  P.  Allis  Co., 

70  111.  App.  556.    412:2. 
Schumpert,    Re,    8    Nat.    Bank    Eeg. 

415.     369. 
Schweinber  v.  Great  W.  E.  Co.,  9  N. 

Dak.   113,  81   N.  W.  35.     366. 
Scobell  V.  Block,  82  Hun  223,  31  N. 

Y.  Supp.  975.     29,  36,  434. 
Seoggin  v.  Slater,  22  Ala.  687.     514, 

515. 
Scolley  V.  Pollock,  65  Ga.  339.    365. 
Scorell    V.    Boxall,    1    Y.    &    J.    396. 

374. 
Scott    V.    Haverstraw   B.    Co.,    16    N. 
Y.  Supp.  670,  135  N.  Y.  141,  31  N. 
E.  1102.     243,  666. 
Scott  V.  Legg,  46  L.  J.  M.  C.  267,  46 

L.  J.  M.  C.  117.     11. 
Scott  V.  Eussell,  72  Ga.  35.     365. 
Scott  V.  Webster,  50  Wis.  53.     610. 
Scott  V.  Wharton,  2  Hen.  &  Mun.  25. 

612. 
Scottish  A.  Co.  V.  Sexton,  26  Ont.  77. 

71,  389,  619,  620. 

Scriven  v.  Moote,  36  Mich.  64.    344. 

Scudder   v.   Anderson,   54   Mich.    122, 

19    N.   W.    775.      30,    35,    70,    437, 

646. 

Seale  v.  Hayne,  9  L.  T.  N.  S.  571,  12 

W.  R.  239,  9  Jur.  N.  S.  — .     324. 
Searl  v.  School  D.,  133  U.  S.  553,  10 

S.  Ct.  374.     89. 

Searle  v.  Sawyer,  127  Mass.  491.  643. 

Sears  v.  Saint  John,  18  Can.  702,  28 

N.  B.  1,  N.  B.  Eq.  Cas.  555.     533. 

SeatoflP    V.    Anderson,    28    Wis.    212. 

72,  382. 
Seattle  &   M.   R.   R.   Co.  v.   Corbett, 

22  Wash.  189,  60  Pac.  127.    90. 
Second  Nat.  Bk.  v.  Hatch,  24  Wash. 

421,  64  Pac.   727.     72,  425. 
Second  Nat.  Bk.  v.  O.  E.  Merrill  Co., 
69  Wis.  501,  34  N.  W.  514.     257, 
259. 
Security  Co.  v.  Security  Co.  of  Potts- 
town,  13  Montg.  Co.  126.     25. 


TUB    BOTTOM    PAGES.] 

Security  Loan  Co.  v.  Williamette  Co., 
99  Cal.  636,  34  Pac.  321.     19,  144, 
152,  262,  481,  482. 
Security   Tr.   Co.   v.   Temple   Co.,   58 

Atl.  865.    48,  388,  396,  437,  448. 
Seedhouse   v.   Broward,   34   Fla.    509, 

16  So.  425.     57,   60,  406,  516. 
Seeger  v.  Pettit,  77  Pa.  St.  437,  18 
Am.  Rep.  452,  1  Wkly.  Notes  Cas. 
226,  11  Alb.  L.  J.  151.     25,  31,  36, 
56,  136,  141,  143,   154,   185. 
Seiberling  v.  Miller,  106  111.  App.  190, 
207   111.   443,   69   N.   E.   800.     262, 
383,  387,  390,  391,  396,  397,  538. 
Seibel  v.  Bath,  5  Wyo.  409,  40  Pac. 

756.     482. 
Seibel  v.  Siemon,  72  Mo.  526,  5  Mo. 

App.  303,  52  Mo.  368.     617,  657. 
Seidel   v.    Cornwell,    166    Mo.    51,    65 

S.  W.  971.     622,  651. 
Seitzinger     v.     Marsden,     2     Penny- 
packer  463,  39  Leg.  Intel.  431.  535, 
546. 
Senter  v.  Mitchell,  16  Fed.  206.    368. 
Seton-Smith,  Re  [1902],  1  Ch.  717,  71 
L.  J.  Ch.  386,  86  L.  T.  R.  322,  50 
W.  R.  237.    477. 
Sever  v.   Lyons,   170   lU.   395,   48   N. 

E.  926.     539. 
Sewall  V.  Duplessis,  2  Rob.  66.     194. 
Sewell  V.  Ahgerstein,  18  L.  T.  N.  S. 

300.     448. 
Sexton  V.  Breese,  135  N.  Y.  387,  32 
N.  E.  133,  48  N.  Y.  St.  R.  525,  57 
Hun  1,  10  N.  Y.  Supp.  510,  32  N. 
Y.  St.  R.  262.     348,  363,  366. 
Seymour  v.   Cushway,   100  Wis.   580, 

76  N.  W.  769.     375. 
Seymour   v.    Watson,    5   Blackf.    555, 

36  Am.  Dec.  556.     38,  92,  454. 
Shaffer  v.  Stevens,  143  Ind.  295,  42 

N.  E.  620.     355. 
Shahan  v.  Herzberg,  73  Ala.  59.    359. 
Shakspeare  v.  Ware,  38  La.  A.  570. 
426. 


TABLE  OP  CASES. 


Ixxxix 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 


Shannon  v.  Gore  I.  Co.,  2  U.  C.  App. 

396.     463. 
Shannon  v.  Jones,  12  Ired.  206.    364. 
Shapira  v.  Barney,   30   Minn.   59,    14 

N.  W.  270,  22  Am.  Law  Eeg.  538. 

143,    649. 
Sharp    V.   Kinsman,    18    S.    Car.    108. 

353. 
Sharp   V.    Milligan,    23   Beav.   419,    5 

W.  K.  336.     255. 
Shaw    V.    Bowman,    91    Pa.    St.    414. 

354,   360,   363,   366. 
Shaw  V.   Carboy,    13   Allen   462.     65. 
Shaw  V.  Lenke,  1  Daly  487.    447,  448. 
Shaw  V.  Shaw,  59  111.  App.  264.    192. 
Sheen,  Ex  parte,  43  L.  T.  R.  638,  15 

Co.  Ct.  &  B.  Ca.  39,  163,  44  L.  T. 

R.    781,    22   Alb.    L.    J.   211.      143, 

251,  259,  508. 
Sheen   v.   Rickie,   5   M.   &  W.   175,   7 

Dowl.  Pr.   335.     2,  4,   127,  653. 
Sheffield  v.  Griffin,  21  Kan.  417.    91. 
Sheffield   B.   Soc.   v.   Harrison,   15   Q. 

B.   D.   358,   54   L.   J.   Q.   B.   15,  51 

L.  T.  R.  649,  33  W.  R.  144,  19  Rep. 

192.     391. 
Sheffield   United   G.   L.   Co.   v.    Shef- 
field, 4  B.  &  S.   13.5,  9  Jur.  N.  S. 

623.     569. 
Shelbyville  W.  Co.  v.  People,  140  111. 

545,   30   N.   E.   678.     560. 
Sheldon  v.  Cook,   11  Chi.  Leg.  News 

76.     20,  28,  437. 
Sheldon    v.    Edwards,   35   N.   Y.    279. 

107,    115,   420,    483. 
Sheldon  v.  Wickham,  50  N.  Y.  Supp. 

314.     493. 
Shell   V.    TTaywood,    16    Pa.    St.    523. 

9,   111,    11.5. 
Shcllar  v.   Shivers,   171    Pa.   St.   569, 

33  Atk  95.     140,  161,  224. 
Shelton    v.    Ficklin,    32    Gratt.    727. 

.399,    440,    46.3,    482,    486. 
Shelton  v.  Willis,  23   Tex.  Civ.   Ai)p. 

.547,  58   S.  W.   176.     103,  382. 
Shepard    v.   Blossom,    66    Minn.    421, 


69  jST.  W.  221,  61  Am.  St.  E.  431. 

21,  436,  440. 
Shepard  v.   Pettit,   30  Minn.   119,   14 

X.  W.   511.     642. 
Shepard    v.    Philbrick,    2    Den,    174. 

347. 
Shepard    v.    Spaulding,    4    Met.    416. 

194,  207,  255. 
Sherboneau   v.   Beaver   I.    Co.,   33   U. 

C.    Q.   B.    1,    30   U.    C.   Q.   B.   472. 

520. 
Sherbrooke  G.   Co.  v.   Sherbrooke,   15 

Leg.  News  22.     559. 
Sherred  v.  Cisco,  6  N.  Y.  Super.  480. 

396. 
Sherman   v.    Willett,    42    N.    Y.    150. 

347,   348. 
Sherman  v.  Williams,  113  Mass.  481. 

397. 
Sherrick  v.   Cotter,   28   Wash.   25,   68 

Pae.  172,  92  Am.  St.  E.  821.    145, 

434,  481. 
Sherry  v.  Picken,   10  Ind.  375.     370.. 

371. 
Shields  v.   Delo,   145   Pa.  St.   393,  22 

Atl.    701.      214,    393. 
Shine    v.    Heimburger,   60    Mo.    App. 

174.     426. 
Shinner  v.  Harman,   3  Ir.  C.  L.  243. 

15,  177. 
Shirk  v.  Board  of  Commr's,  106  Ind. 

573,   7   N.   E.   251.     113,  402. 

Shoekey  v.  Johntz,  2  Kan.  App.  483, 
43  Pac.  993.     346. 

Shoemaker  v.  Simpson,  16  Kan.  43,  3 
Cent.    L.    J.    132.      28,    31,    32,    34, 

84. 

Shofner  v.  Shofncr,  37  Tenn.  94.  350. 
Shows  V.  Brantley,   127  Ala.  352,   28 
So.  71(5.     .368. 

Shuart    V.    Taylor,    7    How.    Pr.    251. 
307. 

Shnbritk    v.    Gucrard,    2    Desaus.    Eq. 
616.     603. 

Shuttleworth  v.  Hernaman,  26  L.  J. 


xc 


TABLE  OF  CASES. 


[REFEnENCES    ARE   TO 

B.  61,  3  Jur.   N.  S.   1313,  1   DeG. 
&  J.  322.     507. 

Siefert    v.    Campbell,    24    Ky.    L.    R. 

1050,  70  S.  W.  630.     344. 
Siemers  v.  Hunt,   28  Tex.  Civ.  App. 

44,   65,    S.    W.    62,    66    S.    W.    115. 

396. 
Sievers  v.  Brown,  34  Ore.  454,  56  Pac. 

170,  45  L.  E.  A.  642.     344. 
Sigiir  V.  Lloyd,  1  La.  Ann.  421.    194. 
Siler  V.  Globe  Glass  Co.,  21  Ohio  C. 

C.  284,  11  Ohio  Circ.  Dee.  784.    33, 
140,  157,  161. 

Silliman   v.   Whitmer,    11    Pa.    Super. 

243,   196  Pa.  St.   363,  46  Atl.  489. 

33,   36,   57,   166,   519. 
Silva  V.  Barr,   141   Cal.  599,   75  Pac. 

162.     359. 
Silverton  v.  Coe  M.  Co.,  80  Cal.  510. 

426. 
Simanek  v.    Nemetz,   97  N.   W.   508. 

482. 
Simmons  v.  Carrier,  60  Mo.  581.   426. 
Simons  v.  Pierce,  16  O.  St.  215.   478. 
Simonton    v.    Cornelius,    98    N.    Car. 

433,  4  S.  E.  38.     332. 
Simpkins  v.   Eogers,   15  111.   397.    99, 

358. 
Simpson   v.    Ferguson,    112    Cal.    180, 

40  Pac.   104,  44  Pac.  484,   53  Am. 

St.  Eep.   201.      366,   502. 
Simpson  v.  Hartopp,  Willes  515.    550. 
Simpson  v.  Masterson,  31  S.  W.  419. 

408. 
Simpson    B.   P.    Co.    v.    Wormley,-   61 

111.  App.  460.     486,  487. 

Sims  V.  Jones,  54  Neb.  769,  75  N.  W. 
150,  69  Am.  St.  E.  749.     364. 

Sims  V.  Kelsay,  75  Mo.  68.     523. 

Sims   V.    State,   136   Ind.   358,    36   N. 

E.   278.     677. 
Sinker    v.    Comparet,    62     Tex.     470. 

440,  486. 
Sisson  V.  Hubbard,  75  N.  Y.  542,  10 

Hun.    420.     401. 


TUB   BOTTOM    PAGES.] 

Skidnes    v.    Huson,    Noy    125.      634, 

655. 
Skillin  V.  Moore,  79  Me.  554,  11  Atl. 

603.     381. 
Skilton  V.   Harrcl,  5  Kan.  App.   753, 

47  Pac.  177.     346. 
Skinner  v.  Bowcn,  13  Vict.  48L    396. 
Skinner  v.  Fort  W.,   T.   H.   &  S.   W. 

E.  E.  Co.,  99  Fed.  465.     89,  415. 
Skinner  v.  Wilder,  38  Vt.  115,  88  Am. 

Dec.   645.     100. 
Slack  V.  Gay,  22  la.  A.   387.    481. 
Slack  V.  Gray,  22  La.  Ann.  387.    78. 
Slanning   v.    Style,    3    P.    Wms.    334. 

476. 
Sleddon  v.   Cruikshank,   16   M.   &  W. 

72.     663,  665. 
Sleeper   v.   Emery,   59   N.   Ham.   374. 

119. 
Slingerland    v.    International    C.    Co., 

43  App.  Div.  215,  60  N.  Y.  Supp. 

12.     83. 
Slocum  V.   Caldwell,   12   Ky.     L.     E. 

514;    13  S.  W.,   1069.     432. 
Slocum  V.  Seymour,  36  N.  J.  L,  138. 

374. 
Small   V.    National  P.   Bk.,    [1894]    1 

Ch.   686,   63   L.   J.   Ch.   270,   70   L. 

T.  E.  492,  42  W.  E.  378,  S.  E.  168. 

493. 
Smart   v.   Hart,   75   Wis.   471,   44   N. 

W.    514.      11. 
Smith,  Ee,  119  Fed.  1004.     104,  107. 
Smith  V.  Altick,  24  O.  St.  369.     381, 

595,    616. 
Smith    V.    Barham,    2    Dev.    Eq.    423. 

350,    351,    357. 
Smith   V.   Benson,    1   Hill    176.      102, 

103,    416,    650. 
Smith  V.  Blake,  96  Mich.  542.     26. 
Smith    V.    Bryan,    5    Md.    141.      371, 

373. 
Smith  V.  Carroll,  4  G.  Greene  146.  38. 
Smith  V.  Champney,  50  lo.  174.     366, 

372. 
Smith  V.  Colby,  67  Me.  169.     646. 


TABLE  OF  CASES. 


XCl 


[REFERENCES    ARE    TO 

Smith  V.   Commonwealth,  77   Ky.   31, 

29  Am.   Eep.  402.     309,   670. 
Smith   V.   Cooley,   5   Daly   401.      525, 

532. 
Smith    V.   Cunningham,    67    Cal.    262, 

7  Pac.  679.     626. 
Smith  V.  Detroit  Min.  Co.,  97  N.  W. 

17.     9,   382. 
Smith   V.   Felt,    50    Barb.   612.      164, 

200,  633. 
Smith  V.  Follansbee,  13  Me.  273.   591. 
Smith  V.   Gilbert,    18   N.   B.    (2   Pug. 

&   B.)    211.     533. 
Smith   V.    Goodwin,   2    Me.    173.      71, 

406,  411,  630. 
Smith  V.  Hague,   25  Kan.  246.     342. 
Smith  V.  Heiskell,  1  Cranch  C.  C.  99. 

449. 
Smith  V.  Jenks,  1  Den.  580,  1  N.  Y. 

90.     120. 
Smith   V.    Johnson,    76    Pa.    St.    191. 

87. 
Smith  V.  Johnston,  1  Pa.  471,  3  Pa. 

496.     340. 
Smith  V.   Leighton,   38  Kan.   544,   17 

Pac.  52,  5  Am.  St.  Eep.  778.  374. 
Smith   V.   Maclure,   32   W.   R.   459,   9 

Cox  Mag.  415.     447,  448,  449,  452, 

453. 
Smith  V.    Martin,   4   Ky.   L.   R.   442. 

396. 
Smith  V.   Mattingly,   96   Ky.   228,   16 

Ky.  L.  R.  418,  28  S.  W.  503.  592. 
Smith  V.  Mayor,  68  N.  Y.  552.  559. 
Smith  V.  Moore,  26  111.  392.     31,  59, 

62. 
Smith  V.  Odom,  63  Ga.  499.     32,  36, 

392,  4.34,  516. 

Smith   V.   Park,    31    Minn.   70,   16   N. 
W.  490.     144,  224, 

Smith  V.  People,  99  111.  445.     658. 

Smith   V.    Peters,   L.   R.    20   Eq.   511. 
529. 

Smith   V.    Price,    39    111.    28,   89    Am. 
Dec.   284.     337,   340,   612. 


THE    BOTTOM    PAGES.] 

Smith   V.    Render,    27    L.   J.    Ex.    83. 

153,  167. 
Smith  V.  Saint  P.  Ch.,  107  N.  Y.  610, 

14  N.  E.  825.     533. 

Smith    V.    Sprague,    119    Mich.    148, 

77    N.    W.    689,    75    Am.    St.    Rep. 

384.     353,   359,   520. 
Smith  V.  Stanford,  62  Ind.  392.     621. 
Smith    V.    Surnam,    9    B.    &    C.    561. 

373. 
Smith  V.  Tritt,  18  N.  C.  241.     364. 
Smith  V.   Waggoner,   50   "Wis.    155,   6 

N.  W.  568.     66,   521. 
Smith  V.  Whitney,  147  Mass.  479,  18 

N.   E.   229.     140,   141,   248. 
Smitherman    v.    State,    63    Ala.    24. 

668. 
Smith  Paper  Co.  v.  Servin,  130  Mass. 

511.     29,  38,  381,  407,  486. 
Smithwiek  v.  Ellison,  2  Ired.  L.  326. 

181,   182. 
Smock    V.    Smock,    37    Mo.    App.    56. 

370. 
Smusch  V.  Kohn,  49  N.  Y.  Supp.  176, 

22  Misc.  344.     9,  141,  142,  143,  202, 

247,  256,  649,  650. 
Smyth  V.   Stoddard,   203   111.   424,   67 

N.  E.  980,  96  Am.  St.  R.  314,  105 

111.   App.   510.      19,    170,   255,   393, 

481,  482,  486,  525,  533. 
Smyth    V.    Sturges,    108    N.    Y.    495, 

15  N.   E.   544,   13   Abb.   N.   C.    75. 
399,   660. 

Snedeker  v.  Warring,  12  N.  Y.  170. 
31,  37,  38,  50,  56,  277,  378,  406, 
450,  456. 

Snodgrass  v.  Posey,  30  Tex.  Civ.  App. 
584,  70  S.  W.  984.     382. 

Snow  V.  Perkins,  60  N.  II.  493,  49 
Am.  Rep.  333.     183,  460,  652. 

Snowden  v.  Memphis  Pk.  A.,  75  Tenn. 
oor;        ooQ 

Snyder  v.  Vaux,    2   Rawle   423.      618, 
Solx.rno    V.    Rabc,    67    III.    108.      541. 


XCll 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO 

Solomon  v.  Staiger,  65  N.  J.  L.  617, 

48  Atl.  996.    69,  472. 
Sornberger  v.  Bcrgren,  "-0  Neb.  399, 

30  N.  W.  413.     361. 
Sosman   v.   Conlon,   57    Mo.   App.   25-. 

36,    425. 
Southard   v.    Morris    Caual,    1    N.    J. 

Eq.   518.     604. 
South  Balto.  Co.  v.  Muhlbach,  69  Md. 
395,   16  Atl.   117,   1  L.   E.   A.   507. 
219. 
Southbridge  Bk.  v.  Mason,  147  Mass. 
500,  18  N.  E.  406,  1  L.  E.  A.  850. 
21,   27,   37,    399,   436. 
Southbridge  Sav.  Bk.  v.  Exeter  Mach. 
Wks.,    127    Mass.    542.      30,    107, 
388,  486. 
Southbridge  Sav.  Bk.  v.  Stevens  Tool 
Co.,    130    Mass.    547,    24   Atl.   Law 
J.  123.    30,  395,  486. 
Southern   S.   Co.   v.  Eolla  L.   Co.,   75 

Mo.  App.  622.    431. 
Southport  V.   Ormskirk   Com.,    [1894] 
1  Q.  B.  196,  63  L.  J.  Q.  B.  250,  69 
L.  T.  E.  852,  42  W.  E.  153,  9  E. 
46,   58   J.   P.   212,    [1893]    2   Q.   B. 
468.     569. 
Southport    B.    Co.    v.    Thompson,    37 
Ch.  D.  64,  57  L.  J.  Ch.  114,  36  W. 
E.  113.     404,  406,  468. 
South    Staf.   W.    v.    Sharman,    65    L. 

J.  Q.  B.  460.     83. 
Sowden  v.  Craig,  26  la.  156,  96  Am. 

Dec.    125.      425,    478,   488. 
Sowerby  v.  Fryer,  L.  E.  8  Eq.  417. 

613. 
Sowles    V.    Eaymer,    110    Mich.    189, 

68  N.  W.  121.     135,  392,  481. 
Sparks  V.   Bell,   91   Ky.   502,   13   Ky. 

L.  E.  63,  16  S.  W.  272.     523. 
Sparks  v.   Spieer,   1   Ld.  Eaym.   738, 

Salk.  648.     86. 
Sparks  v.  Leavy,  19  Abb.  Pr.  364,  1 

Eobt.  530.     222,  629. 
Sparks     v.     State     Bk.,     7     Blackf. 
469.     387. 


THE    BOTTOM    PAGES.] 

Sparrow  v.   Pond,   49   Minn.   412,   52 

N.    W.    36,    32    Am.    St.    Eep.   571. 

334,  336,  338,  365,  541. 

Speers  v.  Flack,  34  Mich.   101.     532. 

Speiden  v.  Parker,  46  N.  J.  Eq.  292, 

19  Atl.  21.     29,  50,  388,   389,  390, 

395. 

Spencer  v.  Commercial  Co.,  30  Wash. 

520,  71  Pac.  53.     255. 
Spencer  v.  Lewis,  1  Houst.  223.     355. 
Spencer's  Case,  Winch.  51.     350,  351, 

357. 
Spinney  v.  Barbe,  43   111.   App.   585. 

28,  447. 
Spooner   v.   Brewster,    2   C.  &   P.   34, 
3  Bing.   136,   10   Moore  494.     324, 
634. 
Sprague  v.  Lisbon,  30  Conn.  18.     565. 
Sprague  Nat.  Bk.  v.  Erie  E.  E.   Co., 
22  App.  Div.  526,  48  N.  Y.  Supp. 
65.     414. 
Springfield    Co.    v.    Cole,    130    Mo.    1, 

31   S.  W.  922.     138,  157,  432. 
Sproule  V.  Hopkins,  4  Ky.  L.  E.  533. 

373. 
Spruhen  v.  Stout,  52  Wis.  517,  9  N. 

W.  277.     54,  427. 

Spry   V.   Lumb.   Co.   v.    C.   H.   Green, 

76  Mich.  320,  43  N.  W.  576.     639. 

Squier  v.   Mayer,   Freem.   Ch.   249,   2 

Eq.   Ca.   Abr.   430.      196,   300,   301, 

308,   309. 

Stack  V.   Eaton,   4   Ont.  L.   335.     56, 

61,    390,    395,    448. 
Staekpole  v.  Eastern  E.  E.,  62  N.  H. 

493.     66,  68,  652. 
Stafford   v.   Adair,   57   Vt.   63.      106, 

502. 
Stagg   v.   Piland,    31    Tex.   Civ.   App. 

245,   71   S.  W.  762.     64,  365. 
Staley  v.   Castloton,   33   L.   J.   M.   C. 

178,  5  B.  &  S.  505.     573,  577. 
Stall  V.  Wilbur,  77  N.  Y.  158.     351. 
Stambaugh   v.    Yates,    2    Eawle    161. 

340. 
Stamps  V.  Cooley,  91  N.  C.  316.     228. 


TABLE  OF  CASES. 


XClll 


[references  are  to  the  bottom  pages.] 


Stanbrough  v.   Cook.   83   la.   705,   49 

N.  W.  1010.     345. 
Standard   Oil   Co.   v.   Lane,    75    Wis. 

636,   44   N.  W.   644.     53,   427. 
Stansfield    v.    Hambergham,    10    Ves. 

278.     606. 
Stansfield    v.    Mayor    of    Portsmouth, 

4  C.  B.  N.  S.  120,  27  L.  J.  N.  S. 

C.  P.  124,  4  Jur.  N.  S.  440.     212, 

218,   242. 
Staples  V.  Emery,  7  Me.  201.     181. 
Stark    V.    Hight,    3    Pa.    Super.    516. 

217. 
Starks    v.    Eedfield,    52    Wis.    349,    9 

N.  W.  168.     610. 
State  V.   Anderson,   90   Wis.   550,   63 

N.  W.  746.     562. 
State  V.  Berry,  52  N.  J.  L.  308,  19 

Atl.  665.     560. 
State  V.  Bonbam,   18  Ind.  231.     546, 

547. 
State   V.   Boysen,    30   Wash.    338,    70 

Pac.  740.     677. 
State    V.    Brinkerhoff,    44    Mo.    App. 

169.     674. 
State  V.  Butler  County,  10  Ohio  Circ. 

Dec.  118.     10. 
State   V.    Casteel,   51    Mo.   App.   143. 

366. 
State  V.  Cherry,  72  N.  C.  123.     668, 

670. 
State  V.    Crawford    County,    17   Ohio 

C.  C.  370.     10. 
State  V.  Davis,  22  La.  A.  77.     667. 
State  V.  District  Ct.  of  Eamsey  Coun- 
ty,   31    Minn.   354,    17   N.   W.   954. 

563. 
State  V.  Doepke,  68  Mo.  208.    325. 
State   V.    Durant,   53    Mo.   App.   493, 

60  Mo.   App.   390.      366,   372. 
State  V.  Elliott,   11   N.  H.  540.     188, 

189,   199,  453,   618. 
State  V.  Fowler,  88  Md.  601,  42  Atl. 

201,  42  L.  R.  A.  849,  71   Am.   St. 

R.  452.     542. 
State  V.  Foy,  82  N.  C.  679.     668. 


State  V.  Gemmill,  1  Hous.  9,     541. 
State  V.  Goodnow,   80   Mo.   271.     63, 

69,  424. 
State  V.  Graves,  74  N.  C.  396.     634, 

667. 
State  V.   Green,   106  La.  440,   30  So. 

898.     670. 
State   V.   Gulf   Ry.   Co.,    3   Rob.   513. 

89. 
State  V.  Hall,   5  Harr.  492.     667. 
State  V.  Haney,  32  Kan.  428,  4  Pac. 

831.     674. 
State  V.  Hannibal  &c.  R.  R.  Co.,  135 

Mo.  618,  37  S.  W.  532.     397,  563, 

565. 
State  V.  Hughes,  80  Miss.  609,  31  So. 

963.     316. 
State  V.  Jones,  129  N.  C.  508,  39  S. 

E.   795.     674. 
State  V.  King,  98  N.  C.  648,  4  S.  E. 

44.     669. 
State    V.    Marshall,    4    Mo.    App.    29. 

4,  122,  544. 
State  V.   McCall,  4  Ala.  643.     677. 
State  V.  MeCracken,   118  N.  C.  1240, 

24  S.  E.  530.     674. 
State    V.    Mission    Free    School,    162 

Mo.  332,  62  S.  W.  998.     558. 
State  V.   Moore,   11  Ired.   70.     669. 
State  V.   Newkirk,   49   Mo.   84.      674, 

675. 
State  V.  Northern  &c.  Ry.  Co.,  18  Md. 

193.     609,  610,  611. 
State  V.   O'Xcil   Lumb.   Co.,   77   Mo. 

App.   538.     104,   480. 
State  V.  Parker,  34  Ark.  158.     669. 
State  V.  Pottmeyer,  33  Tnd.  402.     83. 

State  V.  Prince,  42  La.  A.  817,  8  So. 
.591.     669,  671. 

State  V.  Red.  R.  Co.,  69  Minn.   131, 

72  N.  W.  60.     557. 
State  V.  Repp.  104  Ta.  305,  73  N.  W. 

829.      329. 
State  V.  Rising,  10  Nev.  97.     674. 
State  v.  Roseman,  66  N.  C.  634.    674. 


XCIV 


TABLE  OF  CASES. 


[KEFKKENCES    AUE    TO 

State  V.  Salisborry,  49  Kan.   160,  30 

Pac.  192.     99,  301,  671. 
State  V.  Severance,  55  Mo.  378,    566. 
State  V.  Stephenson,  2  Bail.  334.    668, 

670. 
State  V.  Taylor,  27  N.  J.  L.  117,  72 

Am.    Dec.    347.      329,    668. 
State   V.    Thompson,    93   N.     C.     537. 

668. 
State  V.  Wharton,   115  Wis.  457,  91 

N.  W.  976.     560. 
State  V.  Whitener,   93  N.  C.  590,  92 

N.  C.  798.     188,  674. 
State  V.  Williams,   32   Minn.   537,   21 

N.  W.  746.     365,   368. 
State  V.  Wilson,  Coxe  439.     677. 
State  Sav.  Bk.  v.  Kercheval,  65  Mo. 
682,  27  Am.  Eep.  310.     19,  29,  55, 
407,  411,  610. 
State    Treas.   v.    Somendlle   &   E.    R. 

R.  Co.,  28  N.  J.  L.  21.     50,  567. 
StaufFer   v,    Cincinnati,    R.    &    M.    R. 

E.  Co.,  70  N.  E.  543.     380. 
Stead  V.  Gamble,  7  East.  325.     21. 
Stead  V.  Knowles,  79  Ala.  446.     399. 
Stearns  v.  Gafford,  56  Ala.  544.     368, 

371. 
Stearns  v.  Hubbard,  8  Me.  320.     386. 
Stearns    v.    Washburn,    7    Gray     188. 

374,  663,  664. 
Stebbins    v.    Culbreth,    86    Md.    656, 

39   Atl.   321.     30,   428. 
Steed  V.  Knowles,  79  Ala.  446.     62, 

71. 
Steele  v.  Farber,  37  Mo.  71.     340. 
Steele  v.  Osboldstone,  16  Austr.  Law 

T.  152.     12. 
Steers   v.   Daniel,   4   Fed.   587.     122, 

545,   548. 
Steger  v.  Arctic  R.  Co.,  89  Tenn.  453. 

14   S.   W.    1087.     431. 
Stell   V.   Paschal,    41    Tex.    640.      36, 

415. 
Stenberg    v.    Liennemann,    20    Mont. 

457,  52  Pac.   84.     14.5,   432. 
Stephens,  Ex  parte,  7  Ch.  D,  127^  47 


THE    liOTTOM    PAGES.] 

L.  J.  B.  22,  37  L.  T.  R.  613,  13  Co. 
Ct.  &  B.  285,  23  Eng.  Repts.  458, 
26  W.  R.  136,  5  Rep.  284.     207. 
Stephens  v.  Ely,  162  N.  Y.  79,  56  N. 
E.  499,  14  App.  Div.  202,  43  N.  Y. 
Supp.  762.     220,  255. 
Stephens  v.  Tucker,  55  Ga.  543.     368. . 
Sterling  v.  Baldwin,  42  Vt.  311.     65, 

372,   374. 
Stettauer  v.  Hamlin,  97  111.  312.     7. 
Steuart  v.  Douglas,  Brown  Fixt.  Ap- 
pend A.     277,   283,  448,   452. 
Stevens   v.    Barfoot,    13    U.    C.    App. 

366.     86,  388,  472,  489,  521. 
Stevens  v.  Briggs,  5  Pick.  177.     82. 
Stevens  v.  Buflfalo  &  N.  Y.  C.  R.  R. 
Co.,  31  Barb.  590.     2,  9,  21,  50,  51, 
541. 
Stevens  v.  Burnham,  62  Neb.  672,  87 

N.  W.   546.     195,   200. 
Stevens  v.  Hollingsworth,  74  111.  202. 

539. 
Stevens  v.  Rose,  69  Mich.  259,  37  N. 

W.  205.     57,  266,  394,  591. 
Stevens  Mfg.   Co.  v.  Barfoot,   9  Ont. 

692.     85,  521. 
Stevenson  v.   Bachrach,   170  111.   253, 

48  N.  E.  327.     394. 
Steward  v.  Lombe,  1  B.  &  B.  506,  4 
Moore  281.     35,  36,   147,  512,  537, 
546. 
Stewart  v.  Doughty,  9  John.  108.   357, 

358,  363,  364. 
Stewart  v.  Earl  of  Bute,  3  Ves.  212, 

n  Ves.  657.     476. 
Stewart  v.  Munford,  91  111.  58.     207, 

223,   518. 
Stewart  v.  Pier,  58  la.  15,  11  N.  W. 

711.  533. 
Stillman  v.  Flenniken,  58  la.  450,  10 
N.  W.  842,  43  Am.  Rep.  120,  13 
Rep.  462,  25  Alb.  Law  J.  417.  403, 
444,  486. 
Stillman  v.  Hamer,  8  Miss.  424.  86, 
91. 


TABLE  OF  CASES. 


XCV 


[REFERENCES    ARE    TO 

Stimson  v.  Smith,  1  N.  W.  Ter.  109, 

1   Terr.  L.  R.  183.     621,  624. 
Stimson  M.  Co.  v.  Los  Angeles  T.  Co., 

141  Cal.  30,  74  Pac.  357.     430. 
Stinchfield   V.    Milliken,    71    Me.   567. 

393. 
Stirman    v.    Cravens,    33     Ark.     376. 

112,  398. 
Stockwell  V.  Campbell,  39  Conn.  362, 

12  Am.  Rep.  393.     21,  31,  426,  428. 
Stockwell   V.   Marks,   17    Me.   455,   35 

Am.  Dec.  266.     187,  198,  231,  649. 
Stockwell   V.    Phelps,    34    N.    Y,    363. 

626,  628. 
Stokoe   V.    Upton,    40   Mich.    581,    29 

Am.  Rep.  560.     142,  201. 
Stomfil  V.  Hicks,  Holt  414.     358. 
Stone  V.  Proctor,  2  D.  Chip.  108.   459, 

642. 
Stone  V.  Thaden,  10  N.  Y.  Supp.  236, 

32  N.  Y.  St.  R.   296.     397,   513. 
Stoner  v.  Hunsicker,  47  Pa.  St.  514. 

87. 
Storer  v.  Hunter,  3  B.  &  C.  368.   210, 

509,   510,   531. 
Storm  V.  Mann,  4  .John.  Ct.  21.    603. 
Story  V.   Windsor,   2   Atk.   630.     614. 
Stout  V.  Sawyer,  37  Mich.  313.     426. 
Stout  V.  Stoppel,  30  Minn.  56,  14  N, 

W.    268,    22    Am.    Law    Reg.    536. 

104,  213,  651. 
Stoutfil's  Case,  2  Mod.   77.     333. 
Straight   v.    Mahoncy,    16   Pa.   Super. 

155.     136,  147. 
Strang  v.   Pray,   89   Tex.  525,   35   S. 

W.  1054.     398,   425. 
Strathmore  v.  Bowes,  2  Bro.  C.  C.  88, 

2  Dick.  673.     266,  606. 

Strauss    v.    Davy,    15    Leg.    Int.    139, 

3  Phila  137. 

Straw  V.  Straw,   70  Vt.   240,   30  Atl. 

1095.     66,   647,  65L 
Strickland    v.    Parker,    54    Me.    263. 

23,   27,   31,    37,   64,   402,   642. 
Strode  v.  Swim,  1  A.  K.  Marsh  366. 

361. 


THE    BOTTOM    PAGES.] 

Strong  V.  Doyle,  110  Mass.  92.     514, 

516. 
Strubbee   v.    Cincinnati    Ry.,    78   Ky. 

481.    83,  618. 
Stiidley  V.  Ann  Arbor  Bk.,  112  Mich. 

181,  70  N,  W.  426.     57,  472. 
Stukeley  v.  Butler,  Hob.  173.    334. 
Stultz  V.  Dickey,   5  Binn.   285.     354. 
Sturges  V.  Warren,  11  Vt.  433.     441. 
Sturgis  V.  Warren,   11   Vt.   433.     22, 

543. 
Stiiyvesant    v.    Davis,    9    Paige     427. 

211. 
Styles  V.  Newport,  56  Atl.  662.     559. 
Succession  of  Bienvenu,  106  La.  595, 

31    So.    193.     415. 
Sudbury  v.   Jones,  8   Cush.   184.     86, 

103,   111. 
Sugden   v.    Beasley,    9    111.    App.    71. 

346,  349. 
Sullins   V.   State,   53   Ala.   474.      350, 

610. 
Sullivan  v.  Carberry,  67  Me.  531.    96, 

213. 
Sullivan  v.  Davis,  29  Kan.  28.     634. 
Sullivan  v.  Jones,  14  S.  C.  362.     104, 

116,  522. 
Sullivan    v.    LaFayette      County,      58 

Miss.  790.     89. 
Sullivan  v.   Toole,   26   Hun   203.     72, 

407. 
Summers   v.    Cook,    28    Gr.    Ch.    179, 

373. 

Summers  v.  Cooper,  4  Aust.  L.  T.  57. 
213. 

Sumner  v.  Bromilow,  34  L.  J.  Q.  B. 
130,  11  Jur.  N.  S.  481.  12,  212, 
218,  250. 

Sun    A.    Co.    V.    Taylor,    9    Man.    89. 

389,  436,  441,  443,  472,  520,  521. 
Sunderland   v.    Newton,    3    Sim.    450. 

236,   608. 

Sutton  V.   Moody,   1  Ld.  Raym.   250, 

Comyns.  34.     328. 
Sutton  V.  Sears,  10  Tnd.  223.     219. 


xevi 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  TUB  BOTTOM  PAGES.] 


Swaffonl  V.  Spratt,  93  Mo.  App.  631, 

67  S.  W.  701.     365,  366. 
Swain  v.  Bartlow,  62  lud.  546.     351. 
Swan   V.   Goff,    39   App.   Div.    95,    56 

N.  Y.  Supp.  690.     83. 
Swans,  Case  of  the,  7  Co.  17b.     327, 

328. 
Sweet  V.   Henry,   175   N.  Y.   268,    67 

N.  E.  574,  66  App.  Div.  383,  72  N. 

Y.  Supp.   868.     394,  481,  482. 
Sweet  V.   Myers,   3   S.  D.  324,  53  N. 

W.  187.     145,  198,  200. 
Sweetzer  v.  Jones,  35  Vt.  317,  82  Am. 

Dec.    639.      22,    31,    387,    437,   438, 

441. 
Swift,  The,   [1901]   P.  168,  70  L.  J. 

P.  47,  85  L.  T.  E.  346.     329. 
Swift  V.   Sheehy,  88  Fed.  924.     523, 

533. 
Swift   V.    Thompson,   9   Conn.   63,   21 

Am.   Dec.   718.      22,   433,   441. 
Switzer   v.   Allen,    11    Mont.    160,    27 

Pac.  408.    243,  531. 
Swoop  V.  Saint  Martin,  110  La.  237, 

34  So.  426.     486. 
Sword  V.  Low,  122  111.  487,  13  N.  E. 

826.      28,    61,    399,   478,   488. 
Sydney  v.  Australian  Gaslight  Co.,  3 

N.  S.  W.  St.  E.  66.     568,  577. 
■  Sydney  v.  Sydney  Power  Co.,  3  N.  S. 

W.  St.  R.  87.     568,  577. 
Sykes,  Ex  parte,   18  L.   J.   N.   S.  B. 

16,  13  Jur.  486.     507. 
Syme  v.  Harvey,  24  Sc.  Sess.  Sa.  202. 

164. 
Symonds  v.  Harris,  51  Me.  14,  81  Am. 

Dec.  553.     403,  443,  629. 
Tabor   v.   Eobinson,     36    Barb.    483. 

381,  394,  632,  644. 

Taffe  V.  Wamick,  3  Blackf.   Ill,   23 
Am.  Dec.   383.     20,   435,   539,   .543. 

Taft  V.  Stetson,  117  Mass.  471.     103, 

104. 
Tagart,  Ex  parte,  DeG.  531.     405. 
Talargoch   M.    Co.   v.     Saint    Asaph 


Union,   L.    R.    3   Q.   B.   478.     568, 

582. 
Talbot  V.  Cruger,  81  Hun  504,  30  N. 

Y.  Supp.  1011,  63  N.  Y.  St.  R.  205, 

151  N.  Y.  117,  45  N.  E.  364.     102, 

255,  520. 
Talbot  V.  Hill,  68  111.  106.     339,  356, 

360. 
Talbott  V.  Scott,  4  Kay  &  John.  96. 

603. 
Talbot   V.    Whipple,    14     Allen      180. 

146,  151,  152,  199,  207,  208,  209. 
Talley  v.  Alexander,  10  La.  Ann.  627. 

194. 
Tallman  v.  Coffin,  4  N.  Y.  134.     532. 
Tamworth    v.    Ferrars,    6    Ves.    419. 

266,   606. 
Tanjong  Co.  v.  Commr's,     4     Kyshe 

103,    2   Straits  L.   J,   54.     12. 
Tapley  v.  Smith,  18  Me.  12.     483. 
Tarabino  v.  Nicoli,  5  Colo.  App.  545, 

39  Pac.  362.     95. 
Tarbell   v.    Page,    155   Mass.    256,    29 

N.   E.  58.5.     411. 
Tate  v.  Blackburne,  48  Miss.   1.     31, 

55,  56,  378,  444. 
Tate  v.  Field,   56  N.  J.  Eq.   35,   37 

Atl.  440,  57  N.  J.  Eq.  53,  40  Atl. 

206,  57  N.  J.  Eq.  632,  42  Atl.  742. 

73,  407,  594,  616. 
Tayloe  v.  Bush,  75  Ala.  432.     339. 
Taylor  v.  Bond,  Bush.  Eq.  5.     350. 
Taylor  v.  Collins,  51  Wis.  123,  8   N. 

W.  22.     26,  33,  58,  382,  610. 
Taylor  v.  Maule,  2  Walker  539.     532. 
Taylor   v.    McConnell,    53    Mich.   587, 

19  N.  W.   196.     631. 
Taylor  v.  Morgan,  86  Ind.  295.     424. 
Taylor  v.   Newcomb,    123   Mich.  637, 

82   N.   W.   519.     183. 
Taylor  v.  Plunkett,  56  Atl.  384.     395, 

436. 
Taylor  v.  Prendergast,  29  S.  W.  87. 

95. 
Taylor  v.   Townsend,   8   Mass.   416,   5 

Am.  Dec.  107.    194,  422,  631. 


TABLE  OF  CASES. 


xcvii 


[refehexces  are  to  the  bottom  pages.] 


Taylor  v.  Watkins,  62  Ind.  511.     441. 
Taylor   v.  Wright,   51   App.   Div.   97, 

64  N.  Y.  Supp.  344.     631. 
Teaff  V.  He^-itt,   1   Ohio   St.  511,   59 

Am.  Dec.  634,  1  Am.  Law  Eeg.  O. 

S.   723.     2,   6,   21,  26,  28,  60,   151, 

165,   170,   302,   387,   406,   439,   441, 

445,  462,  464,  543. 
Teal  V.  Auty,  2  B.  &  B.  99.     374. 
Tebb  V.  Hodge,  L.  R.  5  C.  P.  73,  39 

L.  J.  C.  P.  56,  38  L.  J.  C.  P.  217. 

505 
Temple  Co.  v.  Penn.  M.  Ins.  Co.,  69 

N.  J.  L.  36,  54  Atl.  295.     30,  395, 

396,  440,  453. 
Templeman  v.  Biddle,  1  Harring.  522. 

353. 
Tench  v.  Eothermel,  4  Luz.  Leg.  Eeg. 

R.   110.     11. 
Tennessee  &  C.  E.  E.  Co.  v.  East  Ala. 

Ey.  Co.,  75  Ala.  516.     660. 
Terhune  v.  Elberson,  3  N.  J.  L.  726. 

339. 
Terrell  v.  Frazier,  79  Ind.  473.     374. 
Territory   v.   Delinquent   Tax   List,    3 

Ariz.  117,  21  Pac.  768.     558. 
Terry  v.   Eobins,   13  Miss.   291.      77, 

140. 
Texas  &  P.  Ey.  Co.  v.  Hays,  3  Tex. 

Ct.  App.  av.,  sec.  56.     90. 
Tharp   v.   Allen,  46   Mich.   389,   9   N. 

W.   443.     96,   394. 
Thatcher    v.    Humble,    67     Ind.     444. 

603. 

Thayer  v.  Wright,  4  Den.  180.     86, 

Theurer   v.    Nautre,    23   La.   A.    749. 
399. 

Thielman    v.   Carr,    75    111.    385.      32, 

428. 
Thomas  v,  Crout,   5  Bush.  37.     199, 
•  205. 
Thomas  v.  Davis,  76  Mo.  72,  43  Am. 

E.  756,   15  Cent.  Law  J.  489.     29, 

378,   388,    393,   462. 

Thomas  v.   Inglis,   7   Ont.   588.     417. 


Thomas  v.  Jennings,  66  L,  J.  Q.  B, 

5.     223. 
Thomas  v.  Morasco,  5  Pa.  Dist.  133. 

546. 
Thomas   v.   Noel,   81   Ind.   382.     342, 

353. 
Thomas    v.   Wagner,    131    Mich.    601, 

92  N.  W.  106.     36,  147. 
Thompson,   Ex  parte,   8   Jur.  633,   13 

L.  J.  Ch.  354.     506. 
Thompson   v.   Craigmyle,    4   B.    Mon. 

391.     364. 
Thompson  v.   Moiles,   46   Mich.  42,   8 

N.  W.  577.     641. 
Thompson   v.    Pettitt,    10   Q.  B.    101, 

11   Jur.   748,   16   L.   J.   Q.   B.   163. 

640. 
Thompson  v.  Eose,  8  Cowen  266.   533. 
Thompson  v.  Thompson,  6  Munf.  518. 

357. 
Thompson  v.  Union  Co.,  110  Ala.  499, 

18  So.  105.     348. 
Thompson  v.  Vinton,  121   Mass.  139. 

390,  412,  413. 
Thompson  v.  White  W.  V.  E.  E.  Co., 

132  U.  S.  68,  10  S.  Ct.  29.     411. 
Thompson   v,    Wilhite,     81    111.    356. 

366. 
Thompson  Mfg.  Co.  v.  Smith,  67  N. 

H.  409,  29  Atl.  405.     427, 
Thompson   S.   Co.   v.   Young,   90   Md. 

278,  44  Atl.  1024.     142. 
Thompson   v.  Smith,   111   la.   718,   83 

N.  W.  789,  50  L.  R.  A.  718,  82  Am. 

St.  Eep.  541.     28,  396,  403,  486. 
Thorn  v.  Sutherland,   123  N.  Y.  236, 

25  N.  E.  362.     209,  221,  226,  649. 
Thornton    v.    Burch,     20    Geo.      791. 

355. 
Thorpe  V.   Milligan,  5  W.  E.  336,  23 

Bcav.    419.      255. 
Thrall   v.   Hill,   110  Mass.   328.      224. 
Thrash  v.  Bennett,  57  Ala.  156.     367. 
Thresher  v.   East  L.  W.  W.,   2  B.   & 

C.   608,   4   D.   &   E.   62.      159,   238, 

258,   259. 


XCVlll 


TABLE  OF  CASES. 


[references  are  to  the  bottom  pages.] 


Thropp's  App.,  70  Pa.  St.  395.     210, 

486,  544. 
Thurston  v.  Union  Ins.  Co.,   17  Fed. 

127,   28   Alb.  Law  J.  490.     8,   13, 

379,  449. 
Thweat   v.  Stamps,   67  Ala.  96.     85, 

341,  435,  647,  651. 
Tibbetts  V.  Home,  65  N.  H.  242,  23 

Atl.  145,   15  L.  E.   A.   56,   23  Am. 

St.  Rep.  31.     388,  392,  488. 
Tibbetts  V.  Moore,  23  Calif.  208.  418, 

419. 
Ticknor   v.    McClelland,    84    111.   471. 

366. 
Tide  Water  Pipe  Line  Co.   v.  Berry, 

53  N.  J.  L.  212,  21  Atl.  490,  52  N. 

J.  L,   308.     560. 
TifiEt  V.   Thornton,   53  N.  Y.   377,   13 

Am.  Eep.  537.     30,  31,  35,  61,  103, 

107,  414,  415,  418,  440,  485,  650. 
Tightmeyer  v.  Mongold,   20  Kan.   90. 

662. 
Tilford  V.  Dotson,  21  Ky.  L.  E.  333, 

51  S.  W.  533.     66,  373. 
Tillman  v.  DeLacy,  80  Ala,  103.    21, 

28,  35,  56,  60,  409. 
Tipton  V.  Martzell,  21  Wash.  273,  57 

Pac.  896,  75  Am.  St.  E.  838.     364. 
Tison   V.   Taniehill,   28    La.    A.    793. 

537. 
Titus  V.  Ginheimer,  27  111.  462.     541, 

605,  606,  611. 
Titus  V.  Mabee,  25  111.  257.     20,  48, 

53,  541,  605,  606,  611. 
Tobey  v.  Webster,  3  .John.  468.     631. 
Tobias  v.  Francis,  3  Vt.  425,  23  Am. 

Dec.  217.     435,  441,  543. 
Todd   V.   Kirby,    4   Ky.  L.    E.     887. 

530. 
Toledo,  A.  A.  &  G.  T.  E.  E.  Co.  v. 
Dunlap,   47    Mich.   456,   11    N.    W. 
271.     90. 
Tolles   V.   Winton,   63   Conn.   440,    28 

Atl.  542.     28,   387,  457. 
Tomlinson   v.   Ayres,   117  Calif.   568, 
49  Pac.  717.     479. 


Tomlinson  v.  Greenfield,  31  Ark.  558. 

368. 
Tomlinson  v.   Thompson,  27  Kan.  70. 

73. 
Tomlinson   v.  White,  Barnes  93.     46. 
Toms   V.   Williams,    41    Mich.    552,    2 

N.   W.   814.     473. 
Topham  v.   Greenside  Fire-Briek  Co., 
37  Ch.  D.  281,  57  L.  J.  Ch.  583,  58 
L.  T.  E.  274,  36  W.  E,  464.    492. 
Toronto   Hosp.   v.  Denham,   31   U.   C. 

C.    P.    203.      66. 
Toronto    Ey.    Co.,   Ee,   25    Ont.    App. 

135,  33  Can.  L.  J.  75.     562. 
Toronto   St.   Ey.    Co.   v.   Fleming,   37 

U.   C.   Q.  B.   116,  35  U.  C.   Q.  B. 

264.     562. 
Toronto  T.  Corp.  v.  White,  3  Ont.  L. 

519.     533. 
Torrey  v,  Burnett,   38  N.   J.  L.  457, 

20  Am.   Rep.   421.      140,   219,   223, 

546,   592. 
Tottell  V.  Howell,  Noy  54.     374. 
Tottenham  v.  Swansea  O.  Co.,  52  L. 

T.   E.    738.      399,   406. 
Towie  V.  Lovet,  6  Mass.  394.     315. 
Towne  v.  Bowers,   81  Mo.  491.     358, 

363. 
Towne   v.   Fiske,    127    Mass.    125,    34 

Am.   Rep.   353.     30,   383,  448,   450, 

537. 
Towner  v.  Ticknor,  112  111.  217.     96. 
Tawnsand    v.    Ford,    72    App.    Div. 

621,  76  N.  Y.  Supp.  501.     75. 
Townsend   v.    Jarman,    [1900]    2    Ch. 

698,  69  L.  J.  Ch.  823,  83  L.  T.  E. 

866,   49   W.   R.   158.      13. 
Townsend  v.  Payne,  42  La.  Ann.  909, 

8  So.  626.     64,  342. 
Townsend  v,  Underhill,  6  Pa.  Co.  544, 

19    Phila.    412.      139,    144. 
Township  of  Corwin  v.  Moorehead,  43 

la.   466.     622. 
Towson  V.  Smith,  13  App.  D.  C.   48. 

28,  55,  60,  394,  396,  40.3,  516. 
Traders'    Bk.    v.    First    Nat.    Bk..    6 


TABLE  OP  CASES. 


XCIX 


[beferences  are  to  the  bottom  pages.] 


Kan.  App.  400,  50  Pac.  1098.  32, 
56. 
Trappes  v,  Harter,  3  Tyrwh.  603,  2 
Cr.  &  M.  153,  3  L.  J.  N.  S.  Ex. 
241.  69,  109,  123,  301,  302,  306, 
311,  400,  413,  472,-  473,  481,  507. 
Trask  v.  Little,  182  Mass.  8,  64  X. 

E.   206.     223. 
Travellers   I.   Co.   v.   Patten,   98   Ind. 

209.     407. 
Treadway  v.  Sharon,  7  Nev.  37.     31, 

56,    86. 
Treat  v.  Dorman,   100  Calif.  623,  35 

Pac.   86.     349. 
Treece  v.  Treece,  73  Tenn.  221.     386. 
Tremont   Mills   v.   Lowell,    163   Mass. 

283,  39  N.  E.   1028.     564. 
Trethowan,   Ee,   5   Ch.   D.  559,  46  L. 
J.   B.   43,   13   Co.   Ct.   &  B.   79,   22 
Eng.  R.  307.     399,  493,  494. 
Trevey,  Re,  14  L.  T.  N.  S.  193.    iii, 

435,    505,    507. 
Trimmier  v.  Darden,  61  S.  Car.  220, 

39  S.  E.  373.     524. 
Triplett  v.   Mays,  13  Ky.  L.  E.  874. 

22,  28,  459. 
Triplett  v.  Parmlee,  16  Neb.  649,  21 

N.  W.  403.     618. 
Tripp  V.  Arraitage,  4   M.   &  W.  687, 
8  L.  J.   N.  S.   Exch.   107.     8,   54, 
115,  665. 
Tripp   V.    Haspeig,    20    Mich.    254,    4 

Am.  Rep.  388.     339,  349,  370. 
Trowbridge  v.  Hayes,  45  N.  Y.  Supp. 

635,   21    Misc.   234.     472,   519. 
Trull  V.  Fuller,  28  Me.  545.    402,  443, 

486. 
Trustees  v.  Gnibb,  19  Leg.  Int.   157, 

5    Phila.   R.    41.      36,    147. 
Tnixall    V.    Williams,    83    Tenn.    427. 

432. 
Tuck  V.  Olds,  29  Fed.  738.     486. 
Tucker  v.   Linger,   8   App.   Cas.    508. 
64,   165. 

Tiidnr  Iron  Wks.  v.  Hitt,  49  Mo.  App. 
472.     119,   385,   618. 


Tunis  Lumb.  Co.  v.  Denis  Lumb.  Co., 

97   Va.   682.      36,    136,   225. 
Tunica  County  v.  Tate,  78  Miss.  294, 

29  So.  74.     567. 
Turner  v.  Cameron,  L.  R.  5  Q.  B.  306, 

39  L.  J.  Q.  B.  125,  22  L.  T.  N.  S. 

525,  18  W.  R.  544,  9  B.  &  S.  931, 

24  L.  T.  N.  S.  500.    4,  21,  549,  552, 

555,   556. 
Turner  v.   Cool,   23   Ind.   56,   85  Am. 

Dec.  449,     341. 
Turner    v.    Kennedy,    57    Minn.    104, 

58  N.  W.  823.     19,  214. 
Turner   v.    Mebane,    110    N.    C.   413, 

14  S.  E.  974.     71. 
Turner  v.  Wentworth,  119  Mass.  459. 

428. 
Tuttle  V.   Leiter,   82   Fed.   947.     530, 

533. 
Tuttle    V.    Merchants'    Nat.    Bk.,     19 

Mont.  11,  47  Pac.  203.     546. 
Tuttle    V.    Robinson,    33    N.    H.    104. 

302,   304,   305,   449,   450. 
Tyler  v.  Decker,  10  CaHf.  435.     423. 
Tyler  v.  Fickett,  75  Me.  211.     381. 
Tyler  v.  Jacob,  4  Ky.  L.  R.  717.    523. 
Tyler    v.    White,    68    Mo.    App.    607. 

29,   55,   390. 
Tyne  B.  Co.  v.  Longbenton,  IS  Q.  B. 

D.  81,  56  L.  J.  M.  C.  8,  55  L.  T. 
R.  825,  35  W.  R.  110,  17  Q.  B.  D. 
651,  54  L.  T.  R.  612,  34  W.  R.  531. 
574. 

Tyne  P.  Co.  v.  Tynemouth  Union,  76 

L.    T.    R.    782.      571. 
Twigg  V.  Potts,  3  Tyrwh.  969,  1   Cr. 

M.  &  R.  89,  3  L.  J.  N.  S.  Ex.  336. 

552,  636,  638. 
Twyne's  Case,  3  Co.  80.     512. 
Tyson    v.    McGuineas,    25    Wis.    656. 

642. 

Tyson  v.  Post,  108  N.  Y.  217,  15  N. 

E.  316,  2  Am.  St.  Rep.  409,  22  N. 
Y.  Wkly.  Dig.  492.  68,  108,  401, 
470,  514,  516. 

Udal  V.  Udal,  Aleyn  82.     633,  654. 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO 

Union  Bk.  v.  Emerson,  15  Mass.  159. 

389,  399. 
Union   Ch.  v.  Gaylord,   1   Ky.   L.   E. 

403.     383. 
Union  C.  Co.  v.  State,  64  Ark.  136, 

41  S.  W.  52.     561. 
Union  I.  Co.  v.  Tillery,  152  Mo.  421, 

54  S.  W.  220.     412. 
Union    Mtg.    Hs.   v.   Rowell,   66    Me. 

400.     326. 
Union  S.  Wks.  v.  Klingman,  20  App. 

Div.  449,  46  N.  Y.  Supp.  721,  164 

N.  Y.  589,  58  N.  E.  1093.     428. 
Union  Term.   Co.  v.  Wilmar  &  S.  F. 

Ey.  Co.,  116  la.  392,  90  N.  W.  92. 

257,  481. 
Union  T.   Co.  v.  Weber,  96  III.  346. 

563,  567. 
Union  W.  Co.  v.  Murphy's  F.  F.  Co., 

22  CaUf.  631.    406. 
United  States  v.  Cook,  86  U.  S.  591. 

618. 
United      States      v.      Friction-Match 

Maeh.,  1  Haskell  32,  Fed.  Cas.  No. 

15,167.     390,  436. 
United   States  v.   Land  in  Monterey 

Co.,  47  Cal.  515.     89. 
United   States   v.   Loughrey,    71   Fed. 

921,  18  C.  C.  A.  391,  34  U.  S.  Ap. 

575.     64. 
United  States  v.  Smith,  1  Cranch.  C. 

C.  475,  110  Fed.  338.     89,  111,  667. 
United  States  v.  Steenerson,  50  Fed. 

504,  1  C.  C.  A.  552,  4  U.  S.  App. 

332.     618. 
United  S.  v.  Wagner,  1  Cranch.  C.  C. 

314.     667. 
United  S.  I.  Co.  v.  Phelps  &  B.  Co., 

54  Kan.  144,  37  Pac.  982.     429. 
United   S.   Nat.   Bk.   v.   Bonacum,   33 

Neb.  820,  51  N.  W.  233.     428. 
United  S.  Tr.  Co.  v.  Territory,  8  N. 

M.  673,  47  Pac.  725.     32,  558. 

Unz  V.  Price,  22  Ky.  L.  E.  791,  58 

S.  W.  705.     255,  535. 
Updegraff   v.   Lesem,    15   Colo.    App. 


THE   BOTTOM    PAGES.] 

297,   62   Pac.   342.     140,   145,   157, 

161,  202,  210,  212,  216,  648,  653. 
Upton  V.  Hosmer,   70  N.  H.  493,  49 

Atl.  96.     231. 
Upton  V.  Lord  Ferrers,  5  Ves.   801. 

320. 
Uttcndorffer  v.  Saegers,  50  Calif.  496. 

631. 
Vail  V.  Weaver,  132  Pa.  St.  363,  19 

Atl.  138,  19  Am.  St.  Eep.  598.    33, 

543. 
Vaisey  v.  Eeynolds,  5  Euss.  12.     351. 
VanBeuren    v.    Wotherspoon,    164    N. 

Y.  368,  57  N.  E.  633,  74  App.  Div. 

123,  77  N.  Y.  Supp.  543.     532. 
Van   Bibber   v.   Williamson,    37   Fed. 

756.      524. 
Tan  Brunte  v.  Schenck,  11  John.  385, 

632. 
Van  Cortland  v.  Under  hill,   17  John. 

405.     532. 
Vanderkarr    v.    Thompson,    19    Mich. 

82.     340. 
Vanderpool    v.    VanAllen,     10     Barb. 

157.     21,  441. 
Vanderslice  v.   Knapp,   20   Kan.   647. 

74,    414. 
VanDorens  v.  Everitt,  2  South.   460. 

354. 

Vane    v.    Bernard,     1     Salk.     161,     2 

Vern.  738.    606. 
Vane  v.  Lord  Barnard,   2  Vern.  738, 

1   Eq.   Cd.  Abr.  399.     266. 
VanHusen  v.  Omaha  B.  &  T.  Ey.  Co., 

118  la.  366,  92  N.  W.  47.     90,  390, 

397,  516. 
VanKeuren    v.    Central   E.   E.    of   N. 

J.,   38   N.  J.  L.   165.     29,  36,   390, 

482. 
Vann   v.    Lumsford,    91    Ala.    576,    8 

So.   719.      71. 

Van  Ness  v.  Pacard,  2  Pet.  137.  4, 
134,  138,  148,  149,  141,  157,  161, 
165,  168,  169,  170,  172,  185,  193, 
194,   353. 


TABLE  OF  CASES. 


CI 


[REFERENCES    ARE    TO 

VanPelt  v.  McGraw,  4  N,  Y.  112,  3 

Barb.    347.      594,    596. 
Van  Rensselaer  v.  Penniman,  6  Wend. 

569.     255,  531. 
Van  Size  v.  Long  I.  R.  R.  Co.,  3  Hun 

613.     88. 
VanVleck  v.  White,  66  App.  Div.  14, 

72    N.   Y.    Supp.    1026.      210,    255, 

258. 
VanWyck    v.    Alliger,    6    Barb.    507. 

605,   612. 
Vaughan  v.  Burslem,  3  Bro.  C.  C.  101. 

322. 
Vaughen  v.  Haldeman,  33  Pa.  St.  522, 

75  Am,  Dec.  622.     448. 
Vaughn  v.  Grigsby,  8  Colo.  App.  373, 

46   Pac.    624.      73,    396. 
Vaughn  v.  Hancock,  3  C.  B.  766,  10 

Jur.  926,  16  L.  J.  C.  P.  1.     513. 
Vaughn  v.  Vaughn,  88  Tenn.  742,  13 

S.  W.   1089.     351. 
Vausse    v.    Russell,    2     McCord     329. 

549,  624. 
Vehue  v.  Mosher,  76  Me.  469,  20  Cent. 

Law  J.   93.     459,  631. 
Vendome  B.  Co.  v.  Schettler,  2  Wash. 

457,  27  Pac.  76.     426. 
Verner   v.   Betz,   46    N.   J.   Eq.    256, 

19  Atl.  206.     73,  617. 
Vilas    V.    McDonough    Mfg.    Co.,    91 

Wis.  607,  65  N.  W.  488.     11,  427. 
Villas  V.   Mason,   25   Wis.   310.      518, 

648. 

Viscount  Exmouth,  Re,  23  Ch.  D.  158. 
322. 

Visher  v.  Webster,  13  Calif.  58.    372. 
Vogel    V.    Farrand,    55    N.    Y.    Supp. 
977,  26  Misc.  130.    430. 

Vogt    V.    Cunningham,    50    Mo.    App. 
136.     346,  3.50. 

Voils  V.  Battin,  6  Kan,  App.  742,  50 
Pac.  940.     340,  349. 

Vonderbank  v.  Schmidt,  44  La.  Ann. 

264.     13. 
Voorhees  v.   McGinnis,  48  N.  Y.  278. 


THH   BOTTOM    PAGES.] 

21,  30,  35,  60,  107,  311,  418,  419, 
485. 
Voorhis  v.  Freeman,  2  W.  &  S.  116, 

37  Am.    Dec,    490.      24,    46,    455, 
462. 

Vorebeck  v.  Roe,  50  Barb.  302,     374, 

376. 
Vorse  V.  DesM,  M.  Co,,  104  la.  541, 

73  N.   W,   1064.     533. 
Vulcan  I.  Co.  v.  Rapid  Cy.  E.  Co.,  9 

Man.   577.     105,   652. 
Vulicevich  v.  Skinner,   77  Calif.   239, 

19  Pac.  424.     371. 
Waddington   v.    Bristow,    2   B.    &   P, 

452,     371. 
Wade  V.  Donau  B.  Co.,  10  Wash.  284, 

38  Pac.   1009.     408,   440. 

Wade  V.  Johnston,  25  Geo,  331,     22, 

388,  390,  437,  442. 
Wade  V.  Odle,  21  Tex.  Civ,  App.  656, 

54  S.  W,  786.     397. 
Wademan    v.    Thorp,    5    Watts.     115. 

430. 
Wadge   V,  Kittleson,   97  N,   W.  856. 

99. 
Wadleigh  v.   Janvrin,  41   N.  H.   503, 

77  Am.   Dec.   780,     37,  46,   56,   62, 

160,  302,  307,  391,  456,  632,  633, 
Wagar    v,    Briscoe,     38     Mich.     587, 

382, 
Wagner   v,   Cleveland   &c.    R.   R.   Co., 

22    Ohio   St.   563,   10   Am.   R.    770. 

27,    31,    117, 
Wait  V,  Johnson,  15  Abb.  N,  C.  382. 

9, 
Wako  V.   Hall,   8  App,   Cas.   195,  52 

L.  J.  Q.  B.  494,  7  Q.  B.  D,  295,  60 

L.  J.  Q.  B.  545.     98,  112,  213. 
Wakefield  v.  Dyer,  76  Pac.  151.     361, 

628. 
Walburn-Swcnson    Co.   v.    Darrell,   49 

La.  A.  1044,  22  So.  310.  414,  611. 
Waldron  v.  Marsh,  5  Calif.  119.  602. 
Walker  v.  Grand  Dapids  Mill  Co.,  70 

Wis.    92,    35    N.    W.    332.      30,    82, 

651. 


cu 


TABLE  OF  CASES. 


[UEFERENCES    ABE    TO 

Walker  v.  Schindel,  58  Md.  360.     104, 

107,  108,  109,  478,  650,  657. 
"Walker    v.    Sherman,    20    Wend.    636. 

16,  20,  22,  26,  380,  433,  442,  447. 
Walker  v.  State,  111  Ala.  29,  20  So. 

612.     339. 
Wall  V.   Hinds,  4  Gray   270,   64  Am. 
Dec.  64.    5,  135,  138,  145,  151,  157, 
165,  167,  185,  186,  665. 
Wall  V.  Norfolk  &  W.  E.  E.  Co.,  52 

W.  Va.  485,  44  S.  E.  294.     50. 
Wall  V.  Williams,  91  N.  C.  477.     662. 
Wallace  v.  Cherry,  32  Mo.  App.  436. 

344. 
Wallace  v.  Dodd,  136  Calif.  210,  68 

Pac.  693.     120,   338,  420,  479. 
Waller   v.   Bowling,    108    N.    C.    289, 
12    S.    E.    990,    12    L.   E.    A.    261. 
652,  657. 
Wallis  V.  Harrison,  4  M.  &  W.  538. 

222. 

Wallis  V.   Mease,   3  Binn.  546.     668. 

Walmsley    v.    Milne,    7    C.    B.    N.   S. 

115,  6  Jur.  N.  S.  125,  1  L.  T.  N. 

S.  62,  29  L.  J.  C.  P.  97,  23  Month. 

L.  E.  630,  8  Am.  L.  Eeg.  373.     46, 

308,   392,   399,   401,   405,   406,   445, 

453,  473,  505,  511,  580. 

Walrath  v.  Henderson,  6  N.  Y.  Wkly. 

Dig.   293.     29. 
Walsh  V.   Sichler,  20  Mo.  App.   374. 

200,  649. 
Walter   Est.,    10   Luz.   Leg.   Eeg.    E. 

221.     64,  308. 
Walter   v.   Bowling,    108   N.    C.    289. 

420. 
Walton   V.   Fudge,   63  Mo.   App.   52. 

346. 

Walton  V.  Jarvis,  14  U.  C.  Q.  B.  640, 

13  U.  C.  Q.  B.  616.     66,  519,  541. 

Walton  V.  Jones,  65  N.  C.  170.     343. 

Walton  V.  Lowrey,  74  Miss.  484,  21 

So.  243.     374. 
Walton  V.  Wray,  .54  Ta.  531,  6  N.  W. 

742.     112,  151,  .546. 
Wansbrough  v.   Maton,   4   Ad.   &   E, 


THE   BOTTOM    PAGES.] 

884,  6  N.  &  M.  367,  2  H.  &  W.  37, 
4  L.  J.  N.  S.  K.  B.   154,  5  L.  J. 
N.    S.    K.    B.    150.      18,    168,    202, 
585,  648,  651. 
Waples  V.  Waples,  2  Harr.  281.    588, 

590,  591. 
Ward  V.  Andrews,  2  Chitty  636.     633. 
Ward  V.  Dudley,  57  L.  T.  E.  20.     66, 

270,  271,  273, 
Ward  V.  Earl,  86  111.  App.  635.     28, 

136,  142,  144,  149,  155. 
Ward  V.  Hall,  34  N.  B.  690.     534. 
Ward   V.   Kilpatrick,    85    N.   Y.    413, 
39  Am.  E.  674,  20  Am.  Law  Eeg. 
785,  12  Eep.  53.     29,  36,  425,  426, 
451,  462. 
Ward  V.  Smith,  11  Price  19.     666. 
Ward  V.  Toronto,  29  Ont.  729.     533. 
Wardall  v.  Usher,  3  Scott  N.  E.  508, 
10  L.  J.  N.  S.  C.  P.  316,  7  Taunt. 
191.     162,  163. 
Ward's  Case,  4  Leon.  241.     15. 
Ware  v.  Hamilton  Brown  Co.,  92  Ala. 

145,  9  So.  136.     414. 
Warner  v.  Don,  26  Can.  388,  28  Nova 

S.  202.     403,  492,  499. 
Warner  v,  Fleetwood.     188,  300. 
Warner  v.   Hitchins,      5     Barb.    666. 

661. 
Warner   v.    Kenning,    25    Minn.    173. 

104,  478,  479. 
Warren  v.  Leeland,  2  Barb.  614.    374, 

375,   376. 
Warren  v.  Liddell,  110  Ala.  232,  20 

So.   89.     416. 
Warwick   v.   Bruce,    2  M.  &   S.   205. 

370,   371. 
Washband  v.  Washband,     24     Conn. 

500.     108,  514. 
Washburn    v.    Cutter,    17   Minn.    361. 

626. 
Washburn   v.   Sproat,    16    Mass.   449. 

94,   194. 
Washington  lee  Co.  v.   Shortall,  101 
111.   46.     83. 


TABLE  OF  CASES. 


cm 


[befekexces  abb  to  the  bottom  pages.] 


Washington    Nat.    Bk.    v.    Smith,    15 

Wash.  160,  45  Pac.  736.     441,  471. 
Waterfall  v.   Penistone,  6  Ell.   &  Bl. 

876,  3  Jur.  N.  S.   15,  26  L.  J.  Q. 

B.  100,  37  Eng.  L.  &  Eq.  156.     31, 

442,  470,   491,   493. 
Waterman    v.    Clark,    58    Vt.    601,    2 

Atl.  578,  1  N.  Eng.  619.     202,  208, 

223. 
Waterman    v.    Soper,    1     Ld.     Eaym. 

737.     99. 
Waterman  v.  Stout,  38  Neb.  396,  56 

N.   W.   987.     432. 
Waters  v.  Keuber,  16  Neb.  99,  19  N. 

W.   687,   49  Am.   E.   710,   30   Alb. 

L.  J.  398.     35,  384,  621,  622. 
Watertown  Steam  Engine  Co,  v.  Da- 
vis,  5   Houston   192.      32,   47,   108, 

408,  409,  420,  437,  650. 
Watherell  v.  Howells,  1  Camp.  N.  P. 

722.      163,    165. 
Watkins,  Ex  parte,  1  Deac.  296.     511. 
Watkins  v,  Milton-next-Gravesend,  L. 

R.  3  Q.  B.  350.     568,  570. 
Watriss  V.  First  Nat.  Bk.,  124  Mass. 

571,  26  Am.  Eep.  694,  7  Cent.  Law 

J.  206,   18  Alb.  Law  J.  351.     255, 

259,    666. 
Watrous  E.  Co.  v.  Henry,  2  Man.  169. 

417,   521. 
Watrous  E.  Co.  v.  Hoehelaga  Bk.,  5 

Que.  Q.  B.  125,  27  Can.  406.     417. 
Watrous   E.   Co.  v.   McCann,   21   Out. 

App.    486.      104,    402. 
Watson  V.  Alberts,  120  Mich.  508,  79 

N.  W.  1048.     486. 
Watson    V.  Braun,   4   Ky.   L.  E.  981. 

116. 
Watson  V.  Hunter,  5  John.  Ch.  169. 

604,   605. 
Watson  V.  Lane,  11   Exch.  769.     666. 
Watson   V.   Markham,   77   S.   W.   660. 

408. 
Watson  V.  Menteer,  59  Mo.  App.  387. 

346. 
Watson   V.   Watson   Mfg.   Co.,   30   N. 


J,  Eq.  483.     29,  388,  390,  395,  396, 

400. 
Watterson   v.   Bonner   Co.,    19    Mont. 

554,   48   Pac.   1108.     538,   539. 
Watts  V.  Friend,  10  B.  &  C.  446.    371. 
Watts   V.   Lehman,    107   Pa.    St.    106, 

16  Pitts.  Leg.  J.  78,  21  Cent.  Law 

J.  369.     202,  230,  649. 
Watts-Campbell  Co.  v.  Yuengling,  125 

N.   Y.   1,   25   N.   E.   1060,   51   Hun 

302,  3  N.  Y.  Supp.  869.     427. 
Way  V.  Way,  42  Conn.  52.     33. 
Waycross  Co.  v.  Sossman,  94  Ga.  100, 

20  S.  E.  252.     429. 
Wearin  v.  Munson,  62  la.  466,  17  N. 

W.   746.     603. 
Weatherby  v.  Wood,  29  How.  Pr.  404. 

613. 
Weatherly  v,  Higgins,  6  Ind.  75.    366, 

372. 
Weathersby  v.  Sleeper,  42  Miss.   732. 

31,  60,  112. 
Weathersdane  Pk.  Co.  v.  Watson,  16 

Vict.   758.      18,    170,   262. 
Webb  V.  Boyle,   63  N.  C.   271.     610, 

613. 
Webb  V.  Phillips,  80  Fed.  954,  26  C. 

C.  A.  272,  54  U.  S.  App.  54.     64. 
Webb  V.  Plummer,  2  B.  &  Aid.  746. 

184. 
Webb    V.    State,    52   Ala.    422.      112, 

676. 
Weber  v.  Gardner,  80  S.  W.  481.   104. 
Weber    v.    Lanman,    91    Md.    90,    45 

Atl.   870.     523. 
Webster  v.  Bates  Mach.  Co.,  64  Neb. 

306,   89   N.  W.   789.     230,   479. 
W'ebster  v.  Nichols,  104  111.  160.    513. 
Webster    v.    Potter,    105    Mass.    414. 

397. 
Webster     Lumb.     Co.     v.     Keystone 

Lumb.   Co.,   51   W.   Va.   545,   42   S. 

E.   682.     55,   502,  545. 

Weed   V.   Hall,    101    Pa.   St.  592,   40 

Leg.  Intel.  201.     72,  384,  626. 
Weems  v.  Bryan,   21  Ala.   302.     355. 


MY 


TABLE  OF  CASES. 


[KEFERENCES  ARE  TO  THE  BOTTOM  PAGES. J 


Weeton  v.  Woodcock,  5  M.  &  W.  587, 
5  M.  &  W.  143,  7  M.  &  W.  14.  204, 
210,  639,  642. 
Weibking,  Ke,  [1902]  1  K.  B.  713, 
71  L.  J.  K.  B.  389,  86  L.  J.  K.  455, 
50  W.  R.  460,  9  Manson  131.  508. 
Weil  V.  Kent,  53  La.  An.  2139,  28  So. 

295.     349,   366,  480. 
Weill  V.  Thompson,  24  Fed.  14.     74. 
Weiss  V.  Jackson  County,  9  Ore.  470. 

601. 
Welborn  v.  Spears,  32  Miss.  138.    87. 
Welch,   108  Fed.   367.     33,   217,   403, 

436. 
Welch  V.  Nash,  8  East.  394.     637. 
Weldon  v.   Lytle,   53   Mich.   1,   18   N. 

W.  533.     341. 
Weller  v.  Everitt,  25  Vict.  683.     138, 

154. 
Wells  V.  Banister,  4  Mass.  514.     103, 

118. 
Wells  V.  Maples,  15  Hun  90.     442. 
Wells  V.  Merle  &  H.  Mfg.  Co.,  66  111. 

App.  292.     622. 

Weltman    v.    August,    11    Tex.    Civ. 

App.  604,  33  S.  W.  158.     217,  403. 

Wentworth  v.  Woods  Co.,   163  Mass. 

28,  39  N.  E.  414.     33,  36,  56,  142, 

486. 

Wentz  V,   Fincher,   12   Ired.   L.   297. 

87. 
Wernli  v.  Collins,  87   la.  548,   54  N. 

W.    365.      108. 

Westcott  V.  Delano,  20  Wis.  514.    376. 

West  V.  Blakeway,  2  M.  &  G.  729,  3 

Scott.  N.  R  199,  9  Dowl.  P.  C.  846, 

5  Jur.  630.     9,  220,  244. 

West  V.  Farmers'  M.  Ins.  Co.,  117  la. 

147,  90  N.  W.  523.     32,  60,  379. 
West   V.   Moors,    8    East.    339.      350, 

351. 
West  V.  Smith,  52  Cal.  322.     99. 
West  V.  Stewart,  7  Pa.  St.  122.    484, 

660. 
West  V.  Treude,  Cro.  Car.  187,  Jones 
224.     592,   593. 


Westbrook  v.  Eager,  16  N.  J.  L.  81. 

370. 
West   C.   Lumb.   Co.   v.    Apfield,    86 
Calif.   335,   24  Pac.   993.     56,   148, 
228,    236,   480. 
Western  &  A.  R.  R.  Co.  v.  State,  14 
L.  R.  A.  438.     136,  146,  157,   236. 
Western  N.  C.  R.  R.  v.  Deal,  90  N. 
C.    110.      102,    112,    137,    151,   200, 
214. 
Western  U.   T.   Co.   v.   Burlington   & 
S.  W.  Ry.  Co.,   11   Fed.   1,   3   Mc- 
Crary  130.     30,  35,  107,  414,  417, 
478. 
Western  U.  T.  Co.  v.  State,  56  Tenn. 

509.     562. 
Westgate  v.   Wixon,   128   Mass.    304. 

64,   381,  632,   642. 
Westinghouse    E.    Mfg.    Co.    v.    Citi- 
zens' S.  Ry.  Co.,  24  Ky.  L.  R.  34, 
68  S.  W.  463.     408. 
Weston    V.    Weston,    102    Mass.    514. 

31,   394,   451. 
West  Va.  C.  &  P.  R.  R.  Co.  v.  Mc- 
Intire,  44  W.  Va.  210,  28  S.  E.  696. 
561. 
Wetherbee    v.    Ellison,    19    Vt.     379. 

179,   181,  459,  461. 
Wetherby  v.  Foster,  5  Vt.  136.     542, 

543. 
Wetmore  's  App.,  91  Pa.  St.  276.     10. 
Whaley  v.  Whaley,  51  Mo.   36.     351. 
Wharton   v.    Moore,    84    N.     C.     479. 

411. 
Wheat   V.   Brown,   3   Kan.   App.   431, 

43    Pac.    807.      346. 
Wheat  V.  Watson,  57  Ala.  581.     359. 
Wheeler  v.  Becker,  68  la.  723,  28  N. 

W.   40.     367. 
Wheeler  v.  Bedell,  40  Mich.  693.     29, 

442. 
Wheeler  v.  Kirkendall,  67  la.  612,  25 

N.  W.  829.     353. 
Wheeler  v.  McFerron,  33  Ore.  22.  52 
Pac.  993.     103,  114.  622,  651 


TABLE  OF  CASES. 


cv 


[REFERENCES    ARE    TO 

Wheeler  v.  Montefiore,   2  Q.  B.   133, 

6.  Jur.  299.     631. 
Wheeler    v.    State,    109    Ala.    56,    19 

So.  993.     87,  674. 
Wheeler  &  W.  Co.  v.  Hasbrouck,  68 

la.  554,  27  N.  W.   738.     195 
Whinfield   v.    Watkins,    2    Phillim.    1. 

293. 
Whipley  v.  Dewey,   8  Cal.   36.     210, 

225,   226. 
Whipple  V.  Foot,   2  John.  418.     364. 
Whitbeck  v.  Xew  Y.  Cent.  R.  E.  Co., 

36  Barb.  641.     640,  641, 
White  V.   Arndt,   1   Whart.   94.     134, 

138,  149,  170,  227,  261,  274. 
White  V.  Chaffin,  32  Ark.  59.     427. 
White  V.   Cincinnati  R.   &  M.   E.   E., 

71  N.  E.  276.     28,  61,  379,  380. 
White  V.  Flannigain,  1  Md.  525.    602. 
White  V.  Griggs,  54  la.  650,  7  N.  W. 

125.     345. 
White  V.  Hildreth,  32  Vt.  265.     94. 
White   V.   Pulley,    27   Fed.    436.     66, 

349. 
White  V.   Stoner,   18    Mo.   App.   540. 

640. 
White  V.  Twitchell,   25  Vt.  620.     81. 
White  V.  Wakley,  26  Beav.  17,  28  L. 

J.   N.  S.   Ch.   7.     207,   239. 
White   V.   White,   16   N.   J.  L.     202. 

659. 
Whitehead  v.  Bennett,  27  L.  J.  N.  S. 

Ch.   475,   6   W.   R.   351.      138,   147, 

148,  149,   185. 
Whiteman    v.    LeBlanc,     28    La.    A. 

430.     537,   538. 
Whitemarsh  v.  Cutting,  10  John.  360. 

353. 
Whitenack  v.  Noe,  11  N.  J.  Eq.  413. 

10. 

White's  App.,  10  Pa.  St.  252.  150, 
216,  431, 

White  S.  Q.  Co.  v.  Belknap  S.  Co., 
13  Ky.  L.  R.  244,  16  S.  W.  354, 
17  S.  W.  162.     529,  533,  535. 


THE   BOTTOM    PAGES.] 

White  Wat.  V.  C.  Co.  v,  Comegys,  2 

Ind.  469.     603. 
Whiting  V,  Brastow,  4  Pick.  310.    20, 

154,  170,  172,  187,  194,  454. 
Whitlock  V.  Duffield,  2  Edw.  Ch.  466. 

533. 
Whitmarsh   v.    Walker,    1    Met.    313. 

373. 
Whitmore  v.   Empson,   23  Beav.   313, 

3  Jur.  N,  S.  230,  26  L.  J.  Ch.  364, 

5  W.   E.   217,   28   L.   T.   300.     507, 

508. 
Whitney  v.  Huntington,  34  Minn,  458, 

26   N.  W.   631.     403,   645. 
Whitney  v.  Olney,  3  Mason  280,  Fed. 

Cas.  No.  17,595.     398,  473. 
Whitney   v.   Shippen,    89   Pa.   St,   22. 

220,    247,    518. 
Whitwell    V.    Harris,    106    Mass.    532. 

10. 
Whorley    v.    Karper,    20    Pa.    Super. 

347.     354. 
Wiche's  Case,   9  Edw.  4,  14.     320, 
Wick  V.  Bredin,   189  Pa.   St.  83,  42 

Atl.   17.     25,   33,   217,   546. 
Wick    V.    Hodgson,    12     Moore     213, 

517. 
Wiekes  v.  Hill,  115  Mich.  333,  73  N, 

W.   375.     61,    186. 
Wickliffe  v.  Clay,  1  Dana  585.     91. 
Wiggins    V,    Jackson,    24    Ky.    L.    R. 

2189,   73   S.  W.   779.     373. 

Wiggins  Ferry  Co.  v.  Ohio  &  M.  Ry, 

Co.,   142  U.  S.   396,  12  S.   Ct.   188, 

112,    149, 
Wigglesworth  v.  Dallison,  Doug.  201, 

1  S.  L.  C.  675.     165,  184,  353. 
Wight    V.    Gray,    73    Me.    297.      393, 

407,   411,   412,   413,   418. 
Wilbur    V.    Moulton,    127    Mass.    509, 

643. 

Wilcoxen    v.    Hybarger,    1    Ind.    Tor. 

138,  38  S.  W.  669.     531. 
Wilde  V.  Waters,  16  C.  B.  637,  3  W. 

E.  570,  24  L.  J.  C.  P.  193,  1  Jur. 


CVl 


TABLE  OF  CASES. 


[references  are  to  the  bottom  pages.] 


N.  S.  1021,  32  Eng.  L.  &  Eq.  422. 

45,  61,  401,  473,  649. 
Wilder    V.   Kent,    15    Fed.    217.      26, 

403. 
Wilds  V.  Ward,  138  Ind.  373,  37  N. 

E.  974.     57,  397. 
Wilgiis  V.  Gettings,  21  la.  177.     478. 
Wilkerson  v.  Tborp,  128  Cal.  221,  60 

Pac.   679.     367. 
Wilkes  V.  Hunt,  4  Wash.  100,  29  Pac. 

830.      532. 
Wilkes-Barre  Times  v.  Wilkes-Barre, 

10  Pa.  Dist.  691,  10  Luz.  Leg.  Reg. 

E.   320.     566. 
Wilkins  v.  Vashbinder,  7  Watts  378. 

340. 
Wilkinson    v.    Ketler,    69    Ala.    435. 

368. 
Wilks  V.  Atkinson,  6  Taunt.  11.     517. 
Willard  V.   Pike,   59  Vt.   202,   9   Atl. 

907.      559. 
Willard  v.  Eogers,   54  111.  App.   583. 

228. 
William  Firth  Co.  v.  South  Car.  Loan 

Co.,  122  Fed.  569,  59  C.  C.  A.  73, 

118  Fed.  892.     33,  378,  489,  493. 
Williams'  App.,  1  Monaghan  274,  16 

Atl.  810.     25,  393,  434,  462. 
Williams    v.    Bailey,    3    Dane's   Abr. 

152.     449. 
Williams  v.  Bower,   11  Pa.   Co.  151, 

1    Pa.  Dist.   88.     429. 
Williams  v.   Chicago   E.   Co.,   188   111. 

19,  58  N.   E.   611.     390,   393,   406, 

602,  610,  611,  612. 
Williams      v.      Commonwealth,      168 

Mass.   364,   47   N.   E.   115.     380. 
Williams   v.    Cornwall,    32   Out.    255. 

10. 
Williams    v.    Evans,    23    Beav.    239. 

403,  405. 
Williams  v.   Flood,  63  Mich.  487,   30 

N.  W.  93.     374. 
Williams  v.  Hyde,  98  Mich.  152,  57 

N.  W.  98.     488. 


Williams  v.  Lane,    62   Mo.   App.   66. 

255. 
Williams   v.    Williams,    15   Ves.    419. 

268. 
Williamson  v.  Jones,  43  W.  Va.  562, 

29  S.  E.  416,  39  W.  Va.  231,  19  S. 

E.    436.      662. 
Williamson  v.  New  J.  S.  E.  E.  Co., 

29  N.  J.  Eq.  311,  28  N.  J.  Eq.   277. 

21,   27,  29,  32,   50,  54,  489,  541. 
Williamson  v.  Richardson,  31  La.  An. 

1489.      341,    399. 
Williamson  v.  State,  39  Tex.  Cr.  60, 

44   S.   W.    1107.      11. 
Willis  V.  Branch,  94  N.  C.  142.     636, 

640. 
Willis  V.  Moore,  59  Tex.  628,  46  Am. 

Rep.  284,  66  Tex.  628,  1  S.  W.  799. 

66,  347,  349,  358,  538. 
Willis  V.  Munger  Mach.  Co.,  13  Tex. 

Civ.  App.  677,  36  S.  W.  1010.     30, 

437. 
Willke,  Ex  parte,  34  Tex.  155.     669. 
Wilmarth  v.  Bancroft,  92  Mass.  348. 

62. 
Wilson,  Ex  parte,  2  Mont.  &  Ayr.  61, 

4  Dea.  &  Chit.  143.     390,  448,  449, 

452,  504,  505. 
Wilson    V.    Cass   County,   69   la.   147, 

28   N.  W.   483.     565. 
Wilson  V.  Cummings,  24  N.  Y.  Supp. 

115,  4  Misc.  429,  53  N.  Y.  St.  E. 

584.      437,    652. 
Wilson  V.  Hunter,  14  Wis.  683.     397. 

Wilson  V.  Irvin,  1  Pennypacker  203. 

373. 
Wilson  V.  Eybolt,  17  Ind.  391.     315, 

316,   625. 
Wilson  V.  Scruggs,  75  Tenn.  655.    191. 
Wilson   V.   Simmons,  89   Me.   242,   36 

Atl.   380,      101. 
Wilson    V.    Steel,    13    Phila.    153,    36 

Leg.  Intel.  137,  7  Wkly.  Notes  Cas. 

33.     378,  399,  436,  448. 
Wilson  V.  Whateley,  30  L.  J.  Ch.  673, 


TABLE  OF  CASES. 


evil 


[BEFEKEXCES    ABB   TO 

3   L.   T.  N.   S.   617,   1   John.   &  H. 

436,  7  Jur.  N.  S.  908.     252. 
Wilson  V.  Youst,  43  W.  Va.  826,   28 

S.   E.   781.     561 
Wilton  V.  Harwood,  23  Me.  131.     386. 
Wiltshear  v.  Cottrell,  22  L.  J.  Q.  B. 

177,  17  Jur.  758,  18  Eng.  L.  &  Eq. 

142,  1  Ell.  &  Bl.  674.     18,  43,  128, 

391,  399,  436,  443,  479,  648. 
Winans  v.  Beidler,  6  Ok.  603,  52  Pac. 

405.     97,  167,  603. 
Wincher   v.    Shrewsbury,    3    111.     283. 

434. 
Winchester  v.  Knight,  1  P.  Wms.  406. 

614. 
Wing  V.  Gray,  36  Vt.  267.     170,  481. 
Wing  V.  Wing,  66  Me.  62.     667. 
Winkler  v.  Gibson,  2  Kan.  App.  621, 

42  Pac.   937.     211,   359. 
Winn  V.  Ingilby,  5  B.  &  Aid.  625,  1 

D.  &  R.  247.     310,  537,  629. 
Winner    v.    Williams,    82    Miss.    669, 

35   So.   308.     141. 
Winship  v.  Pitts,  3  Paige  261.     613. 
Winslow    V.    Bromich,    54    Kan.    300, 

38  Pac.  275,  45  Am.  St.  Rep.  285. 

21,    47. 
Winslow    V.    Merchants'    Ins.    Co.,    4 

Mete.   310,  38  Am.  Dec.  368.     31, 

387,   411. 
Wintermute   v.   Light,   46  Barb.   278. 

337,  340,  365. 
Wise  V.   Metcalfe,   10  B.  &   C,   299. 

286,   290,    291. 
Wisehart  v.  Grose,  71  Ind.  260.     246, 

530. 
Wistow's    Case    of    Gray's    Inn,    14 

Hen.  viii,   25b,  4  Man.  &  Ry.   280. 

46,    62,    453,    .551. 
Witherspoon  v.  Nickels,  27  Ark.  332. 

561. 
Witmer's   App.,    45   Pa.    St.    455,    84 

Am.   Dec.   .50.'3.      72,   610,   613. 
Witt  V.   Trustees  of  Druids,  55  Wis. 

376,   13  N.  W.   261.     422. 

Wittenmeyer  v.  Board  of  Ed.,  10  0. 


THE    BOTTOM    PAGES.] 

C.  C.  119,  2  Ohio  Dec.  555,  6  Ohio 

Circ.  Dec.  258.     149,  157,  213,  257. 
Wolford  V.  Baxter,   33   :Slinu.   12,   21 

N.  W.  744,  53  Am.  Rep.  1.     2,  21, 

29,  47,  54,  434,  436. 
Womble  v.  Leach,  83  N.  C.  84.    367. 
Wood  V.  Bell,  6  Ell.  &  B.  355,  25  L. 

J.  Q.  B.  321.     453. 
Wood  V.   County   of   Cheshire,   32   N. 

H.  421.     227. 
Wood   V.   Gaynon,   Amble.   395.     473, 

476. 
Wood  V.  Hewitt,  8  Q.  B.  916,  15  L. 

J.  Q.  B.  247,  10  Jur.  390.     31,  97. 
Wood    V.    Holly    Mfg.    Co.,    100    Ala. 

326,   13   So.   948,  46   Am.   St.   Rep. 

56.     478. 
Wood  V.  Leadbitter,  13  M.  &  W.  838. 

222. 
Wood    V.    Smith,    Cro.    Jac.    129.      2, 

652. 
Wood   V.   Whelen,    93   111.    153.     406, 

464. 
Woodham  v.  First  Nat.  Bk.,  48  Minn. 

67,  50  N.  W.  1015,  31  Am.  St.  Rep. 

622.      394. 
Woodman    v.    Lazar,    21    Calif.    448. 

13. 
Woodman   v.    Pease,    17    N.    H.    282. 

54,   435. 
Woodman  v.  Smith,  53  Me.  79.     397. 
Woodruff  V.   Roberts,  4  La.  A.   127. 

434. 
Woodruff  &  B.  I.  "VMis.  v.  Adams,  37 

Conn.    233.      85. 
Wood's   Case,    12    Mod.    237.      292. 
Woods  V.   McCall,   67  Ga.   506.     648, 

657. 
Woods   V.   Wulf,   84    Minn.    299.      87. 
Woodward   v.   Mackpeth,   Comb.    132. 

678. 
Woodward    v.    Payne,    16    Calif.   444. 

525,    53.3. 
Woolley  V.  Osborne,  39  N.  J.  Eq.  54. 

192. 

Wootton  V.  White,  90  Md.  64,  44  Atl. 


CVlll 


TABLE  OF  CASES. 


[REFERENCES    ABB    TO 

1026,   78  Am.   St.   Eep.   425.  348. 

Worland,  Re,  92  Fed.  893.     388,  393, 

424,  480. 

Worth   V.    Worth,    84   111.    442.  297. 

Wray  v.   Ehinelander,   52   Barb.  553, 

39  How.    Pr.    299.      533. 

Wright  V.  Chestnut  H.  I.  O.  Co.,  45 

Pa.  St.  475.     463. 
Wright    V.    Dubignon,    114    Ga.    765, 

40  S.  E.  747,  57  L.  R.  A.  669.     59, 
194. 

Wright   V.    Macdonnell,   88   Tex.   140, 

30  S.  W.  907,  27  S.  W.  1024.     202, 

217,    224,    257,    261,    658. 
Wright    V.    Smythies,    10    East.    409. 

292.. 
Wright   V.   Watson,   96   Ala.    536,    11 

So.  634.     339. 
Wyatt    V.    Levis   &   K.    R.    R.    Co.,    6 

Que.  L.  R.  213.     53,  55,  70. 
Wylie  V.  Grundysen,  51  Minn.  360,  53 

N.  W.   805.     63,   71,   540. 
Wylie  V.  Karner,  54  Wis.  591,  12  N. 

W.  57.     122. 
Wyndham  v.  Way,  4  Taunt.  316.    163. 
Wynne  v.  Ingleby,   5  B.  &  Aid.  625, 

1  D.  &  R.  247.     310,  537. 
Wystow  's    Case    of    Gray 's    Inn,    14 

Hen.  viii,  25b,  4  Man.  &  Ry.   280. 

46,  62,  453,  551. 


THE   BOTTOM    PAGES.] 

Yale  V.  Seely,  15  Vt.  221.     435. 
Yater  v.  Mullen,  23  Ind.  562,  24  Ind. 

277.      105,   414,   420,   478. 
Yates,  Re,   38   Ch.  D.   112,  57  L.  J. 

Ch.  697.     399,  492. 
Yates  V.  Bachley,  33  Wis.  185.     191. 
Yates   V.   Joyce,    11    John.    136.     74, 

596. 
Yates   V.    Smith,    11    111.    App.    459. 

346,   360. 
Yea  V.  Field,  2  Term.  708.     315. 
Yeakle  v.  Jacob,  33  Pa.  St.  376.    373. 
Yeatman  v.  elevens,  6  Mo.  App.  210. 

526. 
Youmans   v.    Caldwell,    4    O.    St.    71. 

341. 
Young  V.  Baxter,   55  Ind.   188.     109, 

424,   434,   546. 
Young    V.    Consolidated    I.     Co.,     23 

Utah  586,  65  Pac.  720.    202,  260. 
Young  V.  Gay,  41  La.  An.  758,  6  So. 

608.     358. 
Youngblood   v.   Eubank,   68   Ga.   630. 

138,   165,   199,   205. 
Zabriskie    v.    Greater    A.    E.    Co.,    93 

N.   W.   958.     432. 
Zellar  v.  Adam,   30   N.   J.    Eq.    421. 

471. 
Zweituseh   v.   Watkins,    61   Wis.   615, 

21  N.  W,  821.    658. 


THE  LAW  OF  FIXTURES 


CHAPTER  I. 

DEFINITION  AND  NATURE  OF  FIXTURES. 

I.    Definitions. 

There  is,  perhaps,  no  other  legal  term  which  has  been  used 
in  so  many  differing  and  often  contradictory  significations  as  the 
the  term  ' '  fixtures. ' '  This  contrariety  seems  to  have  arisen  from 
the  different  standpoints  from  which  the  subject  has  been 
viewed,  with  reference  to  the  relation  existing  among  the  par- 
ties between  whom  the  questions  have  arisen,  the  degree  of 
annexation,  the  purpose  for,  and  the  intention  with  which  such 
annexation  has  been  made,  the  attributes  of  removability,  ir- 
removability, etc.  Hence,  there  has  arisen  a  variety  of  terms 
expressing  more  or  less  explicitly  those  differing  relations,  etc. ; 
e.  g.,  tenant's  fixtures,  landlord's  fixtures,  removable  and  irre- 
movable fixtures,  trade  fixtures,  etc.,  subjects  to  be  considered 
hereafter. 

The  term  "fixtures,"  however,  seems  generally  to  have  been 
used  with  reference  to  articles  which,  in  and  of  themselves, 
and  irrespective  of  annexation,  real  or  constructive,  to  land, 
are  of  a  chattel  nature,  and  which  have  been  either  actually 
or  constructively  affixed  either  to  the  soil  itself,  or  to  some  struc- 
ture legally  constituting  a  part  thereof. 

The  term  has  often  been  used  to  denote  such  articles  of  a 
chattel  nature,  as,  when  once  annexed  to  the  realty,  may  not 
•be  removed  by  the  party  annexing  them,  as  against  the  f*2] 
owner  of  the  freehold.' 

1  TTill   Fixt.,  13;   Broom  Leg.  Max.,  404.     [Brown  v.  Baldwin,  121  Mo., 
126,  134   (1893);  Ooodin  v.  Ellparrlsville  Hall  Ass'n,  5  Mo.  App.,  289,  293 
(1878);    Ritchie   v.    McAllister,    14    Pa.   Co.,    267,    269    (1894).]      See   the 
various  uses  of  the  term  collected  in  Burrill's  Law  Diet.,  Fixture. 
1  1 


•2  TUE  LAW  OF  FIXTURES.  [CIIAP.  I. 

In  the  more  general  sense  of  the  term,  it  means  any  annexa- 
tion or  addition  which  has  been  affixed  to,  or  pUmted  in,  the  soil 
of  the  land.- 

2  Per  Kelly  C.  B.,  in  Climie  v.  Wood,  L.  E.  3  Exch.,  257,  260  (1868) ;  s.  c. 
37  L.  J.  (N.  S.),  Exch.,  158,  159;  18  L.  T.  (N.  S.),  609,  610;  L.  E.  4 
Exch.,  328,  on  appeal.  [Wolford  v.  Baxter,  33  Minn.,  12,  17  (1884); 
Pronguey  v.  Gurney,  37  U.  C.  Q.  B.,  347,  353  (1875).  See,  also,  Monger  v. 
Ward,  28  S.  W.,  821,  823   (Tex.  Civ.  App.,  1894).] 

The  expression  "or  in  the  nature  of  fixtures,"  has  been  declared  to  be 
too  indefinite  and  vague  for  any  practical  purpose,  as  distinguished  from 
fixtures.    Stevens  v.  Buffalo,  etc.,  E.  E.  Co.,  31  Barb.,  597  (1858). 

In  Sheen  v.  Eickie,  5  M.  &  W.,  175,  181  (1839),  which  was  trover  for 
"certain  goods,  chattels  and  fixtures,"  after  verdict  for  plaintiff  it  was 
objected,  that  it  appeared  on  the  face  of  the  record  that  the  action  was 
brought  for  fixtures,  for  which  trover  could  not  be  maintained.  Parke  B.  : 
"If  it  had  clearly  appeared  that  the  plaintiff  meant  to  sue  in  respect  of  fix- 
tures, properly  so  called — things  afiixed  to  the  freehold — the  declaration 
would  be  bad  after  this  assessment  of  general  damages;  but  after  verdict, 
we  ought  to  make  every  reasonable  intendment  in  favor  of  the  declaration; 
and  it  does  not  necessarily  follow,  that  the  word  'fixtures'  must  import 
things  affixed  to  the  freehold,  nor  has  the  word  necessarily  acquired  that 
sense.  It  is  a  very  modern  word,  and  is  generally  understood  to  compre- 
hend any  article  which  a  tenant  has  a  power  of  removing,  as  appears  from 
the  case  of  Colegrave  v.  Dias  Santos,  2  B.  &  C,  76;  3  D.  &  E.,  255;  but 
even  this  is  not  its  necessary  meaning;  it  only  means  something  fixed 
to  another;  and  every  article  enumerated  in  this  declaration  may  be  purely 
a  movable  chattel,  and  the  fit  subject  of  an  action  of  tro'Cer. "  See,  also, 
Brearley  v.  Cox,  24  N.  J.,  287  (1854);  Wood  v.  Smith,  Cro.  Jac,  129 
(1606).  With  reference  to  the  case  of  Sheen  v.  Eickie,  Chancellor  Kent 
says  (2  Com.,  345,  note  (a)  :  "But  I  apprehend  that  the  ordinary  meaning 
is  the  appropriate  and  legal  meaning,  and  which  is,  things  fixed  in  a  greater 
or  less  degree  to  the  realty."  See,  also,  2  Smith's  Lead.  Cas.,  *239,  English 
note,  where  it  is  said :  "It  seems  better,  therefore,  for  the  purpose  of  this 
note,  to  use  the  word  'fixture'  in  that  which  appears  to  be  its  most  natural 
and  obvious  sense,  viz.:  anything  annexed  to  the  freehold." 

In  Teaff  v.  Hewitt,  1  Ohio  St.,  511,  524;  s.  c,  1  Am.  Law  Eeg.  (O.  S.), 
723  (1853),  per  Bartley,  C.  J.,  it  is  said  that  "The  term  fixture  itself,  al- 
though always  applied  to  articles  of  the  nature  of  personal  property  which 
have  been  affixed  to  land,  has  been  used  with  different  significations,  until 
it  has  become  a  term  of  ambiguous  meaning.  And  this  ambiguity  which 
has  attended  the  use  of  this  word  in  various  adjudications  and  by  different 
writers,  has  been  productive  of  much  of  the  uncertainty  which  has  per- 
plexed investigations  falling  under  this  branch  of  the  law.  The  term  fix- 
ture has  been  used  by  various  writers  and  in  numerous  reported  decisions, 
as  denoting  personal  chattels  annexed  to  land,  which  may  be  severed  and 
removed  against  the  will  of  the  owner  of  the  freehold  by  the  party  who  has 

2 


CHAP.  I.]  DEFINITIONS.  *2 

annexed  them,  or  his  personal  representatives.  Amos  &  Ferard  on  the  Law 
of  Fixtures,  2;  Gibbon's  Manual  of  the  Law  of  Fixtures,  5;  Grady's  Law 
of  Fixtures,  1 ;  2  Bouvier  's  Institutes  of  American  Law,  162 ;  2  Kent  Com., 
344. 

' '  There  may  be  some  propriety  in  this  definition  of  the  term  when  con- 
fined in  its  application  to  the  relation  of  landlord  and  tenant,  or  tenant  for 
life  or  years,  and  remainderman  or  reversioner,  to  which  several  of  the  ele- 
mentary authors  have  chiefly  confined  their  attention.  But  it  does  not  ap- 
pear to  express  the  accurate  meaning  of  the  term  in  its  general  application. 
An  article  attached  to  the  realty,  but  which  is  removable  against  the  will  of 
the  owner  of  the  land,  has  not  lost  the  nature  and  incidents  of  chattel  prop- 
erty. It  is  still  movable  property,  passes  to  the  executor,  and  not  to  the 
heir,  on  the  death  of  the  owner,  and  may  be  taken  on  execution  and  sold  as 
other  chattels,  etc.  A  removable  fixture  as  a  term  of  general  application,  is 
a  solecism — a  contradiction  in  words.  There  does  not  appear  to  be  any  ne- 
cessity or  propriety  in  classifying  movable  articles,  which  may  be  for  tempo- 
rary purposes  somewhat  attached  to  the  land,  under  any  general  denomina- 
tion distinguishing  them  from  the  chattel  property.  A  tree  growing  upon 
the  soil,  or  any  other  article  belonging  to  the  freehold,  may  be  converted 
into  a  chattel,  by  a  severance  from  the  land. 

"It  is  an  ancient  maxim  of  the  law  that  whatever  becomes  fixed  to  the 
realty,  thereby  becomes  accessory  to  the  freehold,  and  partakes  of  all  its 
legal  incidents  and  properties,  and  cannot  be  severed  and  removed  without 
the  consent  of  the  owner.  Quidquid  plantatur  solo,  solo  cedit,  is  the  lan- 
guage of  antiquity,  in  which  the  maxim  has  been  expressed.  The  term  fix- 
ture, in  the  ordinary  signification,  is  expressive  of  the  act  of  annexation,  and 
denotes  the  change  which  has  occurred  in  the  nature  and  the  legal  incidents 
of  the  property;  and  it  appears  to  be  not  only  appropriate,  but  necessary, 
to  distinguish  this  class  of  property  from  movable  property,  possessing  the 
nature  and  incidents  of  chattels.  It  is  in  this  sense  that  the  term  is  used 
in  far  the  greater  part  of  the  adjudicated  cases.  Co.  Lit.  53  a,  4 ;  2  Smith 's 
Leading  Cases,  114;  Chancellor  Kent's  note  (a),  2  Kent's  Com.  345;  Dud- 
ley V.  Ward,  Ambl.  113;  Elwes  v.  Maw,  3  East,  57.  It  is  said  that  this 
rule  has  been  greatly  relaxed  by  exceptions  to  it,  established  in  favor  of 
trade,  and  also  in  favor  of  the  tenant,  as  between  landlord  and  tenant. 
And  the  attempt  to  establish  the  whole  doctrine  of  fixtures  upon  these 
exceptions  to  the  general  rule,  has  occasioned  nuicli  confusion  and  mis- 
understanding on  this  subject. 

"Amos  &  Ferard,  in  their  treatise  on  the  law  of  fixtures,  mention  the 
division  of  the  subject  into  removable  and  irremovable  fixtures,  and  give  a 
definition  of  each  class.  (See  Amos  &  Ferard  on  Fixtures,  p.  11).  And 
they  remark  'that  it  is  difficult  to  determine  in  which  of  the  above  senses 
it  is  most  frequently  emftloycd. '  Tliis  classification  of  fixtures  may  be 
essential  to  a  correct  understanding  of  the  double  sense  in  which  the  term 
has  been  frequently  used  in  the  authorities;  but  it  would  not  seem  to  be 
needed  for  any  other  purpose."  •  *  *  *  "A  fixture  is  an  article 
which  was  a  chattel,  but  which  by  being  physically  annexed  or  affixed  to  the 

3 


•3  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[♦3J  *Mr.  Ferard,  iii  his  valuable  work  on  Fixtures,  uses  the 
term  "as  denoting:  those  personal  chattels  which  have  been  an- 
nexed to  land,  and  which  may  be  afterwards  severed  and  re- 
[*4]  moved  *by  the  party  who  has  annexed  them,  or  his  personal 
representative,  against  the  will  of  the  owner  of  the  freehold."^ 
This  signification  of  the  term  does  not  comprehend  all  the 
relations  in  which  the  subject  is  usually  considered,  and  will 
be  considered  in  this  volume,  e.  g.,  with  reference  to  annexations 
made  by  a  stranger  to  the  land  of  another  without  his  con- 
sent. However,  as  the  vast  majority  of  questions  arising  in  this 
branch  of  the  law  involve  a  consideration  of  the  right  of  re- 
moval, as  between  the  party  making  the  annexation  or  his 
representatives,  and  the  owner  of  the  freehold,  the  term  has 
been  considerably  used  in  this  sense  in  the  reports  and  by  law 
writers.2 

realty,  became  accessory  to  it,   and  part  and  parcel  of  it."      [Davis  v. 
Mugan,  56  Mo.  App.,  311,  316   (1893).] 

[See  Ex  parte  D'Eresby  (1881),  44  L.  T.  E.,  781,  782,  where  James, 
L.  J.,  in  his  opinion,  makes  a  distinction  between  a  "thing  fixed"  and  a 
"fixture,"  because  the  latter  is  an  ambiguous  word  which  supposes  it  to 
be  something  to  which  the  tenant  has  a  right,  and  not  something  fixed 
and  belonging  to  the  freehold.] 

1  Ferard  Fixt.,  2.  [State  v.  Marshall,  4  Mo.  App.,  29,  32  (1877).] 
"  'Fixture'  is  a  term  in  general,  denoting  the  very  reverse  of  the  name." 
1  Chit.  Gen.  Pr.,  161.  In  Van  Ness  v.  Pacard,  2  Pet.,  137,  147  (1829), 
Story,  J.,  uses  the  term  in  a  directly  contrary  sense,  as  denoting  articles 
which  may  not  be  so  removed.  However,  on  pages  143,  145,  146,  148,  he  uses 
the  term  to  denote  articles  that  may  be  removed. 

2  This  signification  of  the  term  has  been  adopted  and  approved  in  the 
following  cases  and  text-books:  Hallen  v.  Eunder,  9  Tyr.,  959  (1834)  ;  s.  c. 
1  Cr.  M.  &  E.,  266;  3  L.  J.  (N.  S.)  Exch.,  260;  Ex  parte  Eeynal,  2  M.  D. 
&  De  G.,  443,  448  (1841)  ;  Sheen  v.  Eiekie,  5  M.  &  W.,  175  (1839)  ;  Turner 
V.  Cameron,  L.  E.  5  Q.  B.  306,  311  (1870)  ;  s.  c.  39  L.  J.,  Q.  B.,  125;  22  L. 
T.  (N.  S.),  525;  18  W.  E.,  544;  9  B.  &  S.,  931;  Parsons  v.  Hind,  14  W.  E. 
861  (1866);  Beardsley  v.  Ontario  Bank,  31  Barb.,  619,  629  (1859);  Cod- 
dington  v.  Beebe,  29  N.  J.  550,  558  (1862);  Sogers  v.  Gilinger,  30  Penn. 
St.,  185,  189  (1858)  ;  Pickerell  v.  Carson,  8  Iowa,  544  (1859) ;  Prescott  v. 
Wells,  3  Nev.,  82,  89  (1867) ;  Broom  Leg.  Max.,  404;  Grady  Fixt.,  1;  Gibb 
Fixt.,  5;  Brown  Fixt.,  1;  Bouv.  Law  Diet.,  Fixture.  See,  also,  Climie  v. 
Wood,  L.  E.,  3  Exch.,  259,  260  (1868)  ;  s.  C.  4  Id.  328;  Gibson  v.  Hammer- 
Bmith  Eailway  Co.,  11  W.  E.,  299  (1863)  ;  Burrill  Law  Diet.,  Fixture. 
[Choate  v.  Kimball,  56  Ark.,  55,  60  (1892);  Harkey  v.  Cain,  69  Texas, 
146,  150  (1887) ;  Ee  De  Falbe,  [1901],  1  Ch.,  523,  538;  Brown  v.  Herriot, 

4 


CHAP.  I.]  DEFINITIONS.  *5 

*With  reference  to  the  objections  to  the  use  of  the  term  [*5] 
in  this  sense,  that  ' '  an  article  attached  to  the  realty,  but  which  is 
removable  against  the  will  of  the  owner  of  the  land,  has  not 
lost  the  nature  and  incidents  of  chattel  property,"  and  that  "a 
removable  fixture  as  a  term  of  general  application,  is  a  solecism 
— a  contradiction  in  words,"  it  may  be  observed  that,  if  the 
term  is  applied  solely  to  articles  once  chattels,  but  which  by 
being  physically  annexed  or  affixed  to  real  estate,  have  become 
a  part  of  and  accessory  to  the  freehold,  the  property  of  the 
owner  of  the  land,  and  which  may  not  be  severed  and  removed 
by  the  party  who  annexed  them,  without  the  permission  of  the 
owner  of  the  land,  there  seems  to  be  no  need  of  any  distinct 
legal  term  to  designate  them,  as  they  at  once  become  parcel  of 
the  realty,  and  subject  to  all  the  rules  of  law  governing  real 
estate  in  general,  and  stand  in  no  more  need  of  a  separate  no- 
menclature than  turf,  gravel,  growing  trees,  or  other  parts  of 
the  realty.  And  though  removable  fixtures  retain  to  some 
extent  some  of  the  attributes  and  incidents  of  chattels,  in  other 
respects,  during  such  annexation,  they  to  some  extent  retain 
some  of  the  incidents  of  realty,  and  it  is  precisely  because  of 
their  mixed  nature,  partaking  in  part  of.  the  nature  of  realty 
and  in  part  of  that  of  personalty,  that  a  distinct  term  may  prop- 
erly be  used  to  distinguish  such  articles,  on  one  hand  from  prop- 
erty possessing  all  the  attributes  of  realty,  and  on  the  other 
hand  from  mere  chattels. 

As  to  the  contradiction  in  words  involved  in  the  use  of  the 

1  Kyshe  (Straits  Set.),  43,  51  (1842).  See,  also.  Freeman  v.  Lynch,  8 
Nebr.,  192,  199   (1879).] 

In  Wall  V.  Ilinds,  4  Gray,  270  (1855),  it  is  said  that  "  'tenant's  fixtures,' 
in  its  strict  legal  definition,  is  to  be  understood  to  signify  things  which  are 
fixed  to  the  freehold  of  the  domisod  j)rcmiscs,  but  which,  nevertheless,  the 
tenant  is  allowed  to  disannex  and  take  away,  provided  he  seasonably  exerts 
his  right  to  do  so." 

In  Ex  parte  Barclay,  5  De  G.  M.  &  G.,  403,  410  (1855) ;  s.  c.  1  Jur.  (N. 
S.)  1145;  25  L.  J.,  Bankr.,  1;  35  Eiig.  L.  &  Ef|.,  160,  Ld  Chancellor  Cran- 
worth  and  the  Lords  Justices,  define  fixtures  to  be  "such  things  as  arc  ordi- 
narily affixed  to  the  freehold  for  the  convenience  of  the  occupier,  .iinl  wliicli 
may  be  removed  without  material  injury  to  the  freehold";  and  he  adds, 
"such  things  when  put  or  fixed  by  the  tenant,  may,  on  certain  conditions, 
be  removed  by  him  without  giving  any  ground  of  complaint  to  the  land- 
lord." 

5 


*6  THE  LAW  OF  FIXTURES.  J  CHAP.  I. 

terms  "removable  fixtures,"  it  may  be  observed  that  the  v^^ord 
"fixture"  necessarily  means  only  something  fixed  or  attached 
to  another,  as  distinguished  from  a  movable, — a  status  of  fixa- 
tion or  annexation,  and  does  not  seem  to  imply  that  such  an- 
nexation is  not  severable.^ 

[*6]  *Were  the  subject  res  integra,  it  would  seem  more  logical 
and  more  in  accordance  with  correct  usage  and  the  significa- 
tion of  the  term,  that  the  ordinary  meaning  should  be  the  ap- 
propriate and  legal  meaning,  viz. :  things  fixed  in  a  greater  or 
less  degree  to  the  realty.^  And  in  this  work,  except  as  other- 
wise indicated  in  the  course  thereof,  the  term  will  be  used  to 
designate  things  originally  chattel  in  their  nature,  which  are  so 
fixed  or  annexed,  either  actually  or  constructively,  to  the  realty, 
as  to  have  lost,  either  wholly  or  to  some  extent,  and  for  some 
purposes,  while  so  annexed,  their  character  as  movable  chattels.^ 
The  term  has,  however,  within  the  limits  above  defined  been 
used  so  loosely  and  in  so  many  different  significations  by  various 
writers,^  that  it  is  deemed  expedient,  in  order  to  render  the 

1  With  reference  to  the  meaning  of  the  term  ' '  fixtures, ' '  see,  also,  Ferard 
Fixt.  11,  where  it  is  said:  "From  the  observations  that  have  been  offered 
in  the  preceding  pages,  the  reader  will  probably  be  of  opinion  that  the 
use  of  the  term  'fixtures,'  in  the  sense  in  which  it  is  adopted  in  the  defini- 
tion, is  attended  with  some  convenience;  inasmuch  as  it  serves  to  distinguish 
a  species  of  things  which  are  subject  to  a  very  peculiar  right  of  property, 
and  which  manifestly  require  some  appropriate  appellation.  Indeed,  the 
application  of  the  term  indiscriminately  to  all  chattels  affixed  to  land, 
serves  to  point  out  their  physical  character  only,  and  has  no  reference  to 
any  legal  rights  that  may  attach  to  them.  And  with  respect  to  its  appli- 
cation to  those  things  which  cannot  legally  be  removed  after  annexation, 
there  appears  to  be  the  less  necessity  for  giving  a  name  to  them,  because  the 
right  of  property  in  these  cases  is  precisely  of  the  same  nature  as  that  which 
is  exercised  over  every  part  of  the  freehold.  It  should,  however,  be  observed 
that  the  term  'fixtures'  has  been  used  by  the  courts,  and  amongst  the  text 
writers  without  much  precision ;  and  it  is  difficult  to  determine  in  which  of 
the  above  senses  it  is  most  frequently  employed."  [McCall  v.  Walter,  71 
Ga.,  287,  290  (1883);  St.  Louis  Eadiator  Co.  v.  Carroll,  72  Mo.  App.,  315, 
319   (1897);  Argles  v.  McMath,  26  Ont.,  224,  235   (1895).] 

2  See  2  Kent  Com.  345,  note  (a)  ;  Climie  v.  Wood,  L.  R.  3  Exch.,  257,  260 
(1868),  per  Kelly,  C.  B.,  s.  c.  on  appeal  L.  E.  4  Exch.,  328;  [Bain  v. 
Brand  (1876),  1  App.  Cas.,  762,  772]. 

3  See  Teaff  v.  Hewitt,  1  Ohio  St.,  511,  525  (1853) ;  Edwards  v.  Derrick- 
son,  28  N.  J.  Law,  56  (1859). 

4  See  the  various  uses  of  the  term  in  Burrill  Law  Diet.     Fixture. 

6 


CHAP.  I.]  DEFINITIONS.  *7 

author's  meaning  more  apparent,  in  all  cases  where  the  use  of 
the  simple  term  "fixture"  would  be  ambiguous,  to  use  in  con- 
nection therewith  the  qualifying  words  "removable,"  "irremov- 
able," or  other  words  of  equivalent  import. 

The  terms  "fixtures,"  "fixed  furniture,"  and  other  similar 
expressions,  are  often  made  use  of  by  testators,  parties  to  con- 
tracts, and  in  other  connections,  and  have  sometimes  come 
before  the  courts  for  interpretation.  In  such  eases  the  meaning 
of  the  terms  is  sometimes  different  from  the  ordinary  signifi- 
*cation  of  the  term  "fixtures,"  and  in  each  case  it  is  to  be  [*7] 
determined  according  to  the  usual  rules  of  interpretation  and 
construction.^ 

5  See  the  general  rules  of  interpretation  and  construction,  well  collected 
in  Blackwell  on  Tax  Titles,  *595,  et  seq. 

The  eases  under  this  head,  not  all  seeming  susceptible  of  a  more  regular 
classification  under  the  ordinary  topics  of  the  law  of  fixtures,  are,  except  so 
far  as  they  serve  to  illustrate  subjects  to  be  considered  farther  on,  presented 
in  this  note. 

Fixed  Furniture,  etc. — A  testator  by  his  will  devised  his  house,  with  the 
grates,  stoves,  coppers,  etc.,  and  the  "fixtures  and  fixed  furniture,"  to  his 
executors  upon  trust,  to  permit  E.  S.  V.  to  have  the  use  thereof  for  her  life; 
he  also  bequeathed  his  furniture,  plate,  etc.,  and  other  properties  not  being 
comprehended  under  the  term  ' '  fixtures  and  fixed  furniture ' '  in  trust  for  E. 
S.  v.,  absolutely.  There  were  in  the  messuage  looking-glasses  standing  on 
chimney-pieces,  and  fastened  by  nails  on  each  side  to  the  wall,  and  a  book- 
case standing  on,  but  not  fastened  to,  brackets,  and  fastened  above  by  a 
screw  to  the  wall:  Held,  that  these  were  included  in  the  term  "fixed 
furniture,"  a  distinction  being  made  in  the  will  between  fixtures  and  fixed 
furniture.  Lord  Dciiman,  C.  J.:  "The  will  mentions  three  classes  of  arti- 
cles: fixtures,  fixed  furniture,  and  furniture  not  fixed.  We  must  see  what 
will  answer  to  each  of  those  three  classes.  Bells  and  other  fixtures  consti- 
tute the  first.  The  articles  which  may  be  removed  by  the  hand  at  once, 
constitute  tlie  third.  The  intermediate  class  is  furniture  which  is  fixed, 
and  that  appears  to  me  to  comprehend  the  articles  in  question. ' '  Birch  v. 
Dawson,  6  C.  &  P.  6.58  (1834) ;  s.  c,  2  Ad.  &  E.,  37.  [See,  post,  p.  *314. 
A  conveyance  of  "fixtures,  of  every  description,  attached  to  said  buildings, 
in  said  bulMings  and  belonging  to  the  same"  docs  not  indicate  two  classes 
of  fixtures,  one  attached  and  tiic  other  not  attached,  but  only  one  class, 
and  does  not  cover  desks,  chairs,  trucks,  show-cases  and  the  like.  Stettauer 
V.  Hamlin,  97  111.,  :il2,  319  (1881).  "Where  a  catalogue  of  articles  to 
bo  sold  at  auction  onunifratod  gasfittings,  Venetian  blinds,  fire  escapes, 
coat  hooks  and  beer  engines  along  with  a  great  number  of  movable  Jirticlcs 
without  distinction,  a  purchaser  at  private  sale  of  "all  and  singular,  the 

7 


•7  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

stock  aiul  furniture"  intended  to  be  sold,  acquires  the  fixtures.     Daly  v. 
Marshall,  -4  N.  Z.  L.  E.   (Supr.  Ct.),  28   (1885).] 

[Store  Fixtures.— Theso  are  store  fittings  or  fixed  furnitures,  which  are 
peculiarly  adapted  to  make  a  room  a  store  rather  than  something  else,  such 
as  shelving,  counters,  etc.,  and  an  exception  thereof  in  an  insurance  policy 
does  not  include  fixtures  in  a  factory;  while  "store  or  other  fixtures" 
would  include  the  fixtures  of  a  factory.  Thurston  v.  Union  Ins.  Co.,  17 
Fed.,  127,  129  (U.  S.  C.  C,  N.  Ham.,  1883)  ;  Commercial  Ins.  Co.  v.  Allen, 
80  A'la.,  571,  578   (1886);  Sawyer  v.  Long,  86  Maine,  541   (1894).] 

The  words  "-fixtures  and  appurtenances,"  have  acquired  a  peculiar  and 
appropriate  meaning,  and  are  to,  be  construed  according  to  such  meaning, 
having  due  reference  to  the  context,  and  to  the  connection  in  which  the 
words  are  used ;  and  where  a  bill  of  sale,  purported  to  sell  and  convey  ' '  all 
fixtures  and  appurtenances  contained  in  the  daguerreian  rooms  on  Main 
Street,  Dubuque,  belonging  to  said  F.  M.  P.,"  there  being  no  schedule  of 
the  property  attached  thereto,  it  was  held,  that  ' '  appurtenances ' '  embraced 
all  such  property  as  pertained  or  belonged  to  the  room,  or  as  remained  there 
permanently,  and  was  used  in  carrying  on  the  daguerreian  business,  such  as 
maps  and  pictures  hanging  on  the  wall,  stove  and  carpet,  apparatus  and 
furniture,  machines  and  stock,  and  all  things  used  in  carrying  on  the  busi- 
ness—the term  "fixtures"  being  satisfied  by  the  sky-light,  balcony,  parti- 
tion, etc.,  admitted  to  be  fixtures.  Pickerell  v.  Carson,  8  Iowa,  544  (1859). 
[See  post,  p.  *166.  In  Lewis  v.  Kosler,  16  W.  Va.,  333,  342  (1880),  "ap- 
purtenances" was  held,  in  an  order  appointing  a  receiver  for  real  estate, 
to  include  fixtures  which  had  been  severed  to  prevent  their  loss  or  mis- 
appropriation.] 

[Fixtures  and  Fittings. — A  lease  provided  that  "fixtures  and  fittings" 
were  to  remain  the  property  of  the  landlord.  Held,  that  a  bar,  bar-shelves, 
oyster-counter,  gaseliers,  gas-brackets  and  other  gas  fixtures  came  under 
this  designation,  as  those  attached  by  nails  and  screws  were  fixtures,  and 
the  term  "fittings"  applied  to  objects  necessary  to  fit  the  premises  for 
their  special  destination,  e.  g.,  the  bar  and  counters  in  a  bar-room.  Ee 
Duperrouzel,  9  Leg.  News    (Montreal),   380.      (Super.  Ct.,   1886).] 

Work  Bone  and  Fixed.— In  Tripp  v.  Armitage,  4  M.  &  W.,  687  (1839)  ; 
S.  c,  8  L.  J.  (N.  S.),  Exch.,  107,  B.,  a  builder,  contracted  with  A.  to  build 
a  hotel  for  a  specified  sum,  to  complete  certain  portions  within  specified  times, 
being  paid  by  instalments  at  corresponding  dates.  The  agreement  contained 
a  clause  empowering  A.,  in  case  B.  should  become  bankrupt,  to  take  pos- 
session of  the  work  already  done,  and  to  avoid  the  agreement,  and  that 
A.  should  in  such  case  pay  B.  or  his  assignees  only  so  much  as  A.'s  architect 
should  adjudge  to  be  the  value  of  the  work  actually  done  and  fixed.  No 
articles  were  received  in  the  course  of  the  business  till  inspected  and  ap- 
proved by  the  clerk  of  the  works.  B.,  pending  the  work,  became  bankrupt. 
Before  his  bankruptcy,  certain  wooden  sashes  were  delivered  by  him  on  A.  's 
premises,  approved  by  the  clerk  and  returned  to  B.  to  have  pulleys  of  B.  af- 
fixed, and  at  the  time  of  the  bankruptcy  were  with  pulleys  attached  in  B.  's 
shop,  but  were  afterwards,  before  the  issuing  of  the  fiat,  redelivered  to  A., 

8 


CHAP,  I.]  DEFINITIONS.  '  7 

who  subsequently,  on  the  sash  and  frames  being  demanded  by  the  assignees, 
unqualifiedly  refused  to  deliver  them  up:  Held,  that  this  was  not  a  con- 
tract to  purchase  goods  at  all,  but  a  contract  for  work  to  be  done;  that  A. 
was  not  bound  to  pay  for  anything  till  put  up  and  fixed,  and  therefore  the 
property  remained  in  B.  and  passed  to  his  assignees,  notwithstanding  the 
sash  had  been  approved  by  A,  See  Shell  v.  Haywood,  16  Penn.  St.,  523 
(1851);   Johnson  v.  Hunt,  11  Wend.,  135   (1834). 

[Erected  upon  or  Affixed  to  the  Land.— This  clause  includes  depot  build- 
ings resting  upon  columns.  People  v.  Commissioners  of  Texas,  26  Supr. 
Ct.,  N.  Y.  (19  Hun),  460,  461  (1879).  Where  a  lessee  has  undertaken 
"not  to  affix  or  permit  any  outward  mark  or  show  of  business  to  be 
affixed"  on  the  demised  premises,  and  a  firm  name  appears  upon  a  wire 
blind,  although  removable,  also  upon  a  white  roller  blind,  and  upon  a 
brass  plate  attached  to  railings  at  the  entrance,  each  constitutes  a  breach 
of  the  covenant,     Evans  v.  Davis  (1878),  10  Ch.  D.,  747.] 

[Fixed  and  Attached. — For  the  meaning  of  these  words  in  17  &  18  Vict., 
c.  91,  sec.  42,  see  Dundee  v.  Carmichael  (1902),  4  Sess.  Cas.,  5th  Ser.,  525.] 

[Upon  and  Over. — Where  the  plaintiff  alleged  the  unlawful  erection  by 
the  defendant  of  a  partition  "upon  and  over"  the  plaintiff's  land,  and 
the  evidence  showed  that  such  partition  was  fastened  to  the  defendant's 
building,  but  standing  slightly  upon  the  plaintiff's  side  of  the  line,  it  was 
held  that  the  probata  corresponded  substantially  with  the  allegata.  Hen- 
nessy  v.  Anstock,  19  Pa.  Super.,  644  (1902).] 

Fixtures  and  Articles  in  the  nature  of  Fixtures. — Meaning  of  the  clause, 
in  a  covenant  to  deliver  up  at  the  end  of  the  term  the  demised  premises, 
"together  with  all  locks,  keys,  bars,  bolts,  marble  and  other  chimney- 
pieces,  foot-paces,  slabs  and  other  fixtures,  and  articles  in  the  nature  of 
fixtures,  which  should  at  any  time  during  the  term  be  fixed  or  fastened  to 
the  said  demised  premises."  See  Bishop  v.  Elliott,  11  Exch.,  113  (1855); 
8.  C.  1  Jur.  (N.  S.),  962;  24  L.  J.  (N.  S.),  Exch.,  229;  and  post,  *149, 
under  the  head  of  the  right  of  removing  fixtures,  as  affected  by  special 
agreements  in  relation  thereto.  See,  also,  Stevens  v.  Buffalo,  etc.,  R.  R. 
Co.,  31  Barb.,  597  (1S58),  where  the  expression  "or  in  the  nature  of  fix- 
tures" was  considered  to  be  too  indefinite  and  vague  for  any  practical 
purpose,  as  distinguished  from  fixtures. 

Improvements. — As  between  lessor  and  lessee  the  word  "improvements" 
has  a  more  comprehensive  moaning  than  "fixtures,"  and  includes  the  latter. 
See  French  v.  The  Mayor,  16  TIow.  Pr.,  220  (1858);  S.  c.  29  Barb.,  363; 
West  V.  Blakeway,  2  M.  &  G.,  729  (1841)  ;  Haslett  v.  Burt,  18  C.  B.,  893 
(18.56);  Merritt  v.  Judd,  14  Cal.,  59  (18.59).  [Ames  v.  Trenton  Browing 
Co.,  56  N.  .T.  Eq.,  309,  316  (1897),  aff'd  in  57  N.  J.  Eq.,  347  (1898); 
Parker  v.  Wulstcin,  48  N.  J.  Eq.,  94,  96  (1801);  Hopkins  v.  Oilman,  47 
Wis.,  581  (1879).]  See,  also,  Hasty  v.  Wheeler,  12  Mc.,  434  (1835); 
fSmusch  V.  Kohn,  49  N.  Y.  Supp.,  176,  178  (1898);  Wait  v.  .Jameson, 
15  Abbott's  New  Cas.,  382  (N.  Y.,  1883);  Smith  v.  Detroit  Min.  Co.,  97 
N.  W.,  17,  19  (S.  Dak.,  1903);  London  &  S.  African  Co.  v.  DoBecrs 
Mines   [1895],  A.   C.  451;   Byrnes  v.  Macarthur,   2   N.   S.  W.  L.  R.,   57 

9 


•7  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

(1881).  "Improvements"  in  a  mortgage  will  not  cover  a  greenhouse  not 
attiu'heil  to  the  huul  in  such  a  manner  as  to  become  a  part  thereof.  Eoyce 
V.  Latshaw,  15  Colo.  App.,  420,  425  (1900).  A  stci)ping-stone  and  two 
ornamental  vases  do  not  pass  under  a  mortgage  of  laud  with  the  ' '  im- 
provements thereon  erected. ' '  Pfluger  v.  Carmiehael,  54  App.  Div.,  153, 
155  (X.  Y.,  1900).  Balusters,  railings,  chairs,  scenery  and  the  rollers 
and  pulleys  for  shifting  the  same,  in  a  theater,  are  ' '  fixtures  and  im- 
provements" within  the  mechanics'  lien  law.  Grewar  v.  Alloway,  3  Tenn. 
Ch.,  584,  585  (1877)].  Also  the  right  of  removal  as  affected  by  contract, 
considered  iwst,  in  the  chapter  on  Landlord  and  Tenant,  p.  *149. 

See,  also,  as  to  the  term  ' '  erections, ' '  Bidder  v.  Trinidad  Petroleum  Co., 
17  W.  K.,  153  (1868);  Holbrook  v.  ChamberUn,  116  Mass.,  155  (1874); 
Esterley's  Appeal,  54  Penn.  St.,  192  (1867).  [See,  post,  p.  *166.  See,  also, 
Adamson  v.  Eogers,  22  Ont.  App.,  415  (1895).  A  dock  is  a  "fixture"  or 
"erection"  within  a  statute  prohibiting  the  laying  out  of  roads  through 
fixtures  or  erections  used  for  the  purposes  of  trade.  Flanders  v.  Wood, 
24  Wis.,  572,  576    (1869).] 

Addition. — A  porch  or  piazza  is  an  addition  vnthin  the  5th  Section  of  the 
N.  J.  Mechanics'  Lien  Law  (Nix.  Dig.,  487),  providing  that,  "any  addi- 
tion erected  to  a  former  building,  and  any  fixed  machinery  or  gearing,  or 
other  fixtures  for  manufacturing  purposes  shall  be  considered  a  building 
for  the  purpose  of  this  act. ' '  But  folding  doors  are  not  an  addition,  but 
an  alteration  merely.  Whitenack  v.  Noe,  11  N.  J.  Eq.,  413  (1857).  See, 
also,  Whitwell  v.  Harris,  106  Mass.,  532  (1871),  as  to  the  terms  "altera- 
tion or  addition."  [See,  post,  p.  *166.  See,  also,  Williams  v.  Cornwall, 
32  Ont.,  255,  258  (1900);  Ames  v.  Trenton  Brewing  Co.,  56  N.  J.  Eq., 
309,  316  (1897);  Be  Gaskell's  Set.  Est.  [1894],  1  Ch.,  485.  A  new  foun- 
dation for  a  new  engine  is  an  addition,  and  not  repairs.  Dunnell  v. 
Henderson,  23  N.  J.  Eq.,  174,  178  (1872).  A  steam  heating  plant  which 
is  so  attached  to  a  public  building  as  to  become  a  part  of  it,  is  "an  addi- 
tion to  a  building"  within  a  statute  requiring  a  contract  therefor  to  be 
let  to  the  lowest  bidder.  State  v.  Crawford  County,  17  Ohio  C.  C,  370, 
375  (1899).  Likewise,  a  passenger  elevator  is  an  addition  to  or  alteration 
of  a  courthouse  within  Sec.  798,  Rev.  Stat.,  which  requires  advertisement 
for  proposals,  although  an  elevator  shaft  was  constructed  several  years 
previously.  State  v.  Butler  County,  10  Ohio  Circ.  Dec,  118  (1879).  New 
machinery  for  an  old  mill,  removable  at  pleasure,  is  not  a  "repair,  altera- 
tion of,  or  addition"  within  the  mechanics'  lien  law,  Haslett  v.  Gillespie, 
95  Pa.  St.,  371,  375  (1880).  A  mechanics'  lien  was  claimed  for  "the 
erection,  construction  and  improvement  and  fitting  up"  of  buildings,  and 
related  to  an  additional  furnace  for  a  steel  works  already  in  operation. 
The  statute  did  not  provide  for  "improvements."  Held,  that  the  furnace 
did  not  come  within  the  description,  and  that  "improvement"  was  not 
equivalent  to  "repairs,  alterations  or  additions."  Wetmore's  App.,  91 
Pa.  St.,  276,  278  (1879).  A  heating  apparatus  in  a  mansion-house  is  not 
an  "addition"  within  the  Settled  Land  Act,  and  the  expense  thereof  must 
be  borne  by  the  life-tenant.     Be  Gaskell's  Set.  Est.,   [1894],  1  Ch.,  485. 

10 


CHAP.  I.]  DEFINITIONS.  *7 

Likewise  an  electric  light  plant.  Be  Blagrave's  Set.  Est.  [1903],  1  Ch., 
560.  Be  Clarke's  Set.  [1902],  2  Ch.,  327.  But  see  Be  Freake's  Set.  [1902], 
1  Ch.,  97,  99.  A  large  clock  bolted  to  the  front  wall  of  leased  premises 
is  not  a  violation  of  a  covenant  not  to  make  any  "alteration."  Bick- 
more  v.  Dummer  [1902],  72  L.  J.,  Ch.  96.] 

Building. — A  new  wing  or  addition  to  a  building,  using  the  wall  of  the 
old  building  for  the  fourth  wall  of  the  addition,  is  a  building  within  the 
meaning  of  the  Mechanics'  Lien  Law.  Harman  v.  Cummings,  43  Penn.  St., 
322  (1862).  [But  an  addition  is  not  a  building  within  a  statutory  re- 
striction upon  uniting  buildings.  Scott  v.  Legg  (1877),  46  L.  J.  M.  C, 
267,  reversing  (1876)  46  L.  J.  M.  C,  117.  A  bay  window  is  a  building 
within  a  restriction.  Manners  v.  Johnson  (1875),  1  Ch.  D.,  673.  Likewise 
a  piazza.  Eeardon  v.  Murphy,  163  Mass.,  501  (1895);  Bagnall  v.  Davies, 
140  Mass.,  76  (1885)  ;  Ogontz  Land  Co.  v.  Johnson,  168  Pa.  St.,  178 
(1895),  reversing  14  Pa.  Co.,  86  (1893),  Contra,  Hawes  v.  Favor,  161 
III.,  440,  449  (1896).  A  piazza  is  not  a  building  within  the  mechanics' 
lien  law.  Tench  v.  Eothermel,  4  Luz.  Leg.  Eeg.  E.,  110  (1886).  A  cow- 
stable,  wagon-shed  and  chicken-house  are  "buildings  and  fixtures"  within 
a  statute  forbidding  laying  out  a  highway  through  the  same  without  the 
consent  of  the  owner.  Smart  v.  Hart,  75  Wis.,  471,  473  (1890).  A  covered 
way  to  protect  frescoes  upon  a  churchyard  wall,  is  not  a  "building"  such 
as  is  prohibited  by  the  Disused  Burial  Grounds  Act,  1884,  and  the  Open 
Spaces  Act,  1887.  St.  Botolph,  Aldersgate  Without  v.  Parishioners  [1900], 
P.,  69.  The  foundation  walls  of  an  incomplete  building  are  superstruc- 
tures within  the  mechanics'  lien  law,  though  lowered  into  the  earth,  and 
are  just  as  much  a  part  of  the  building  as  its  upper  story  or  roof  is. 
Baker  v.  Waldron,  92  Maine,  17,  21  (1898).  "Buildings  and  improve- 
ments" in  a  lease  include  machinery  annexed.  Peet  v.  Dakota  Ins.  Co., 
7  S.  Dak.,  410,  421  (1895).  That  a  building  is  not  necessarily  a  fixture, 
see  Williamson  v.  State,  39  Tex.  Crim.,  60,  61  (1898)  ;  Favro  v.  State, 
39  Tex.  Crim.,  452   (1898).     See,  also,  iwst  p.  *166.] 

Factories. — A  covenant  to  keep  factories  insured,  embraces  in  its  obli- 
gation the  fixed  machinery  necessary  to  operate  them,  among  which  are 
the  water  wheel,  shafting  and  gearing;  because,  "without  such  necessary 
machinery  the  buildings  would  not  in  fact  be  factories.  A  building  is  no 
more  a  factory  without  machinery,  than  machinery  would  be  a  factory 
without  a  building."  Mayhew  v.  Ilardesty,  8  Md.,  479  (1855);  [Vilas  v. 
McDonough  Mfg.  Co.,  91  Wis.,  607,  612   (1895).     See,  also,  post,  p.  *308]. 

[Fixed  Machinery. — For  the  meaning  of  'this  term  in  the  mechanics' 
lien  law,  see  Campbell  v.  Taylor  Mfg.  Co.,  64  N.  J.  Eq.,  344,  346  (1902); 
Campbell  v.  John  W.  Taylor  Co.,  62  N.  J.  Eq.,  307  (1901);  Griggs  v. 
Stone,  51  N.  J.  Law,  549,  .552  (1889).  "Machinery  fixed  or  attached"  in 
a  statute  relating  to  assessment  of  leased  premises,  means  such  as  cannot 
be  detached  without  destruction  to  itself  or  injury  to  the  building,  such  as 
would  go  to  the  landlord  at  the  termination  of  the  lease.  Narth  British 
R'y  Co.  V.  Assessor  (1887),  25  Scot.  Law  Rep.,  4.  By  the  conditions  of 
a  sale  of  a  brewery,  the  grantee  was  to  pay  for  the  "fixed  plant"  accord- 

11 


•7  THE  LAW  OF  FIXTURES.  [CIIAP.  I. 

ing  to  a  valuation  to  be  made.  Held,  that  * '  plant ' '  was  dead  stock,  which 
did  not  act,  but  was  that  through,  and  by  means  of,  and  in  which,  action 
took  place,  as  pipes,  vats,  etc.,  but  did  not  include  a  chimney-shaft,  a  par- 
tition, nor  staging.     Ee  Nutley,  9G  Law  Times,  585   (Ch.,  1894).] 

Lands,  Tenements  and  Hereditaments. — Where  the  plaintiff,  being  the 
owner  of  a  woolen  mill  and  a  steam  engine  therein,  let  to  the  defendant 
a  room  in  the  mill,  together  with  a  supply  of  power  from  the  engine  by 
means  of  a  shaft  revolving  in  the  room,  the  amount  of  rent  to  be  regu- 
lated by  the  amount  of  machinery  the  defendant  should  from  time  to 
time  introduce  and  require  to  be  worked  in  the  mill:  Held,  in  an  action 
on  the  statute  4  Geo.  2,  c.  28,  for  the  recovery  of  double  the  annual  value 
(the  statute  giving  double  value  for  "lands,  tenements  and  heredita- 
ments"), against  the  tenant  for  holding  over  after  the  expiration  of  notice 
to  quit,  that  in  estimating  such  double  value  the  power  supplied  could  not 
be  included,  the  compensation  being  jointly  for  the  use  of  the  tenement  and 
its  appurtenances,  and  for  the  landlord's  performance  of  a  contract  to  do 
something  beneficial  to  the  occupier.  Eobinson  v.  Learoyd,  7  M.  &  W., 
48  (1840).  [Where  different  rates  were  to  be  assessed  for  "lands"  and 
for  ' '  houses  and  buildings, ' '  and  certain  warehouses  and  wharves  were 
useless  unless  worked  together,  such  warehouses  and  wharves  were  prop- 
erly assessed  as  "buildings";  but  a  detached  dry-dock  must  be  assessed 
as  ' '  land. ' '  Tanjong  Co.  v.  Commissioners,  4  Kyshe,  103  (Straits  Set., 
1885).] 

[Yard  Fixtures. — An  insurance  policy  excluded  from  its  operation  "yard 
fixtures ' '  and  ' '  store  furniture  and  fijctures. ' '  Held,  that  shelving,  drawers, 
and  an  office  in  the  store,  were  ' '  store  fixtures, ' '  but  that  a  wooden  awning 
in  front  was  neither  a  * '  yard  fixture ' '  nor  a  ' '  store  fixture. ' '  Commercial 
Ins.  Co.  V.  Allen,  80  Ala.,  571,  578   (1886).] 

[Fixed  Engine. — Where  a  statute  provided  a  penalty  for  using  a  "fixed 
engine ' '  for  catching  fish,  and  defined  it  as  any  implement,  device  or  con- 
trivance fixed  to  the  soil  or  partly  stationary  in  any  way  or  manner, ' '  quaere, 
whether  lines,  some  fastened  to  rods  stuck  into  the  ground,  others  to  logs 
or  trees,  or  to  sticks  driven  into  the  ground,  were  ' '  fixed  engines. ' '  Steele 
v.  Osboldstone,  16  Austr.  Law  T.,   152    (1895).] 

As  to  the  distinction  between  "repairs"  and  "fixtures,"  see  Mason  v. 
Fenn.,  13  111.,  525   (1852). 

Movable  Articles — Construed  to  mean  articles  removable  by  the  tenant, 
notwithstanding  they  had  been  aflfixed  to  buildings,  in  Sumner  v.  Bromilow, 
11  Jur.  (N.  S.),  481,  484  (1865)  ;  s.  C,  34  L.  J.  (N.  S.),  Q.  B.,  130.  See 
post,  chap.  [4,  p.  *171,  n.  The  word  "goods"  in  the  chattel  mortgage  act, 
§4913,  means  all  kinds  of  personal  property,  and  includes  fixtures.  St. 
Joseph  Co.  V.  Wilson,  133  Ind.,  465,  472  (1892).  A  conveyance  of  land  con- 
tained a  covenant  that  "no  *  *  *  chattel  shall  be  erected,  made,  placed 
or  be  allowed  to  remain  upon  any  lot."  Held,  that  a  "switchback"  rail- 
way resting  upon  piles  driven  into  the  ground,  was  a  "chattel"  and  not 
a  fixture,  and  was  a  violation  of  the  restriction.  Chamberlayne  v.  Collins, 
9  Eepts.,  311,  (Eng.,  1894).     A  chattel  mortgage  of  "personal  property" 

12 


CHAP,  I.]  ANNEXATION,    ETC.  *8 

*II.     Tests  as  to  whether  a  Fixture  or  not  ;  Annexa-     [*8] 

TION,  ETC. 

The  term  "fixture"  is  not  predieable  of  anything  which  is 
not  susceptible  of  physical  annexation.  Thus,  the  name  "What 
Cheer  House,"  used  by  a  tenant  to  designate  a  building  used 
*by  him  as  a  hotel,  is  not  such  a  fixture  that  the  landlord  [*9] 
or  his  vendee  of  the  premises,  on  the  tenant's  surrendering  the 
same,  has  a  right  to  the  continued  use  of  the  name  to  designate 
that  hotel ;  but  the  said  name  is  a  trade-mark,  to  the  use  of  which 
the  tenant  has  the  exclusive  right,  and  in  the  exercise  of  which 
he  will  be  protected  by  injunction.^ 

As  to  what  are  the  tests  by  which  to  determine  whether  an 
article  is  a  fixture  or  a  mere  chattel,  there  have  been  hitherto, 
and  still  are,  great  confusion  and  contradiction  among  the  au- 

■will  not  create  a  Ken  upon  buildings  not  removed  and  removable  only. 
Sampson  v.  Camperdown  Mills,  64  Fed.,  939,  942  (U.  S.  C.  C,  S.  Car., 
1894).  Where  a  chattel  mortgage  is  given  upon  "my  stock  and  fixtures  in 
the  store  now  occupied ' '  by  the  mortgagor  as  a  tenant,  the  word  ' '  fixtures ' ' 
means  chattels  of  a  permanent  nature  in  contradistinction  from  those  kept 
for  sale,  such  as  were  incident  to  the  convenient  use  of  the  store.  Sawyer 
V.  Long,  86  IMaine,  541  (1894).  As  to  the  meaning  of  "fixtures"  when 
excepted  in  a  policy  of  insurance,  see  Thurston  v.  Union  Ins.  Co.,  17  Fed., 
127,  128  (U.  S.  C.  C,  N.  Ham.,  1883).  Mechanics'  lien  not  allowed  for 
a  hedge  as  "fixtures."  Eastern  Ark.  Fence  Co.  v.  Tanner,  67  Ark.,  156, 
158  (1899).  See,  also,  as  to  flowers,  shrubs  and  trees,  Nanz  v.  Park  Co., 
103  Tenn.,  299   (1899).] 

1  Woodman  v.  Lazar,  21  Cal.,  448  (1863).  See,  also,  Eobinson  v.  Learoyd, 
7  M.  &  W.,  48  (1840);  [Dewitt  v.  Mathey,  18  Ky.  Law  R.,  257  (1896). 
See,  also,  Vonderbank  v.  Schmidt,  44  La.  Ann.,  264  (1892).  But  a  tenant 
cannot  carry  with  him  the  exclusive  right  to  use  the  name  "Tower  Palace" 
if  that  is  not  a  trade-mark,  but  is  the  name  of  the  building,  although  he 
was  the  first  to  occupy  it,  and  used  the  name  extensively  in  advertising. 
Armstrong  v.  Kleinhaus,  82  Ky.,  303  (1884),  aff'g  1  Ky.  Law  R.,  112 
(1880).  Where  the  name  of  the  grantor  of  a  shop  is  carved  in  stone  over 
the  door,  such  stone  forming  a  part  of  tho  freehold,  the  grantor,  in  the 
absence  of  a  covenant  to  that  effect,  cannot  compel  the  grantee  to  erase 
the  name,  although  it  can  be  done  without  much  trouble.  Townsend  v. 
Jarman   [1900],  2  Ch.,  698,  705]. 

[Where  a  grantor  of  land,  as  a  part  of  tho  consideration,  reserves,  in 
the  deed,  his  maintenance  during  his  natural  life,  this  does  not  make  him 
a  "fixture,"  so  as  to  require  his  maintenance  upon  the  laud.  Bonebrake 
V.  Summers,  8  Pa.  Super.,  55,  71    (1898).] 

13 


*10  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

thorities.  This  difference  of  opinion  lias  hitherto  related 
[*10j  *uiainly  to  Avliat  amounts  to  an  annexation  suiificient  to 
convert  an  article  from  a  mere  chattel  to  a  fixture. 

With  the  exception  of  the  cases  of  constructive  annexation, 
heir-looms,  charters,  etc,  referred  to  by  most  of  the  cases  on 
the  subject  as  being  exceptions  to  the  general  rule  as  to  annexa- 
tion, and  the  propriety  of  which  is  on  all  hands  acknowledged, 
there  is  a  numerous  class  of  cases  both  in  England  and  America, 
which  hold  that  there  must  be  in  all  cases  some  degree  of  physi- 
cal annexation  of  the  chattel  to  the  realty  in  order  to  con- 
stitute a  fixture.  With  respect,  however,  to  what  constitutes  an- 
nexation, or  the  requisite  degree  thereof,  there  exists  even  among 
these  cases,  a  wide  diversity  of  opinion.  With  reference  to  this 
subject,  Mr.  Ferard  observes  that  "it  is  necessary,  in  order  to 
constitute  a  fixture,  that  the  article  in  question  should  be  let  into 
or  united  to  the  land,  or  to  some  subject  previously  connected 
with  the  land.  It  is  not  enough  that  it  has  been  laid  upon  the 
land,  and  brought  into  contact  with  it;  the  definition  requires 
something  more  than  mere  juxtaposition:  as  that  the  soil  shall 
have  been  displaced  for  the  purpose  of  receiving  the  article,  or 
that  the  chattel  should  be  connected,  or  otherwise  fastened  to, 
some  fabric  previously  attached  to  the  ground. "  2  The  same 
meaning  is  attached  to  the  term  in  the  English  note  to  Elwes  v. 
Maw,  in  Smith's  Leading  Cases,^  and  is  adopted  by  the  older, 
and  many  of  the  more  modern  authorities,  which  will  be  found 
referred  to  in  the  following  pages  and  the  notes  thereto. 

This  view  of  the  law  on  this  subject  has  been  illustrated  by 
many  cases,  and  though  they  are  not  believed  to  be  entirely  cor- 
rect in  principle,  perhaps  the  subject  cannot  be  better  unfolded 
than  by  stating  some  of  the  leading  cases  upon  the  point. 

The  case  of  Culling  v.  Tufifnal,"*  before  Treby,  C.  J.,  at  Here- 
ford, 1694,  is  generally  referred  to  in  this  connection,  and  though 

2  Ferard,  Fixt.  2.  See,  however,  the  subject  more  fully  considered 
further   on. 

3  Bull.  X.  P.,  34. 

*2  Smith's  Lead.  Cas.,  *239.  "By  the  expression  annexed  to  the  free- 
hold, is  meant  fastened  to  or  connected  with  it ;  mere  juxtaposition,  or  the 
laying  of  an  object,  however  heavy,  on  the  freehold,  does  not  amount 
to  annexation."    See,  however,  American  note  to  same  case  on  page  *250. 

14 


CHAP.  I.]  ANNEXATION,    ETC.  *11 

*the  ease  was  originally  decided  upon  the  ground  of  a  cus-  [*11] 
torn  for  tenants  to  carry  away  such  structures  at  the  end  of 
their  term,  it  has  subsequently  been  considered  to  have  been 
properly  ruled,  on  the  ground  of  its  not  being  fixed  to  the 
ground.  "In  trover  for  ten  loads  of  timber,  the  case  was,  that 
the  defendant  had  been  tenant  to  the  plaintiff,  and  erected  a 
barn  upon  the  promises,  and  put  it  upon  pattens  and  blocks 
of  timber  lying  upon  the  ground,  but  not  fixed  in  or  to  the 
ground ;  and  upon  proof  that  it  was  usual  in  that  country  to 
erect  barns  so,  in  order  to  carry  them  away  at  the  end  of  the 
term,  a  verdict  was  given  for  tlie  defendant."  With  reference 
to  this  case.  Lord  Ellenborough.  in  Elwes  v.  Maw,^  observed: 
"To  be  sure,  he  might  [remove  them],  and  that  without  any 
custom,  for  the  terms  of  the  statement  exclude  them  from  being 
considered  as  fixtures;  'they  were  not  fixed  in  or  to  the 
ground.'  " 

In  Rex  V.  Londonthorpe,^  the  question  was,  whether  or  not  a 
pauper  had  gained  a  settlement  in  A.  by  the  taking  of  a  tene- 
ment at  £10  per  annum.  The  pauper  rented  land  of  the  annual 
value  of  £6  10s  6d.  The  erection  in  question  was  a  post  wind 
mill,  constructed  by  the  tenant  at  an  expense  of  £120  upon 
a  part  of  the  demised  premises,  upon  cross  traces  laid  upon 
brick  pillars,  but  not  attached  or  affixed  thereto,  which  was  the 
usual  mode  of  building  mills  of  that  nature,  and  which  Y'^ 
was  to  be  at  liberty  to  remove  at  pleasure;'''  he  let  the  mill  f  •■ 
a  portion  of  the  time  at  £9  per  annum,  and  during  this  timo 
resided  in  the  tenement  at  £6  per  annum ;  and  upon  this  stnl  • 
of  facts  the  court  were  of  opinion  that  this  wind-mill  was  a  mor(> 
chattel,  and  that  the  pauper  gained  no  settlement. 

B  3  East,  38  (1802)  ;  see,  also,  Shinner  v.  llunuaii,  3  Ir.  Com.  Law,  243, 
247   (1853). 

8  6  Term,  377  (170.'>);  so  in  Ward's  Case,  4  Leon.,  241  (1611),  where  it 
was  afljnd^'il  that  if  a  mill  bo  set  upon  posts,  no  waste  lyeth  for  it.  See, 
also,  Kimpton  v.  Eve,  2  Ves.  &  B.,  349  (1H13).  See,  however,  Bedford 
Election  Case,  2  Luder,  case  12,  p.  440  (178.'i),  where  a  windmill  fixed  on 
a  post,  upon  pattens  in  a  foundation  of  lirirkwork,  was  held  a  freehold 
estate.  Here,  however,  nothin^j  was  rxjiressly  proved  to  show  the  plot  of 
ground  on  which  it  stood  to  belong  particularly  to  the  voter;  and  nothing 
on  the  other  hand  to  show  that  it  did  not. 

7  No  reference  is  made  by  the  court  to  this  agreement,  and  it  does  not 
Beem  to  have  formed  a  ground  for  the  decision  of  the  case.    See  post  ch.  31 

15 


*12  THE  L^VW  OF  FIXTURES.  [CHAP.  L 

[*12]  *Rex  V.  Otley*  was  very  similar  in  its  facts  to  Rex  v. 
Londontliorpe  (supra),  but  was  attempted  to  be  distinguished 
from  that  case  because  the  tenant  there  had  permission  from  the 
landk)rd  to  put  up  the  mill,  and  it  was  treated  by  both  as  a 
chattel ;  this  circumstance  was,  however,  considered  to  make  no 
difference,  and  the  opinion  was  expressed  that  to  constitute 
a  tenement,  it  was  necessary  that  the  structure  should  be  affixed 
to  the  soil,  or  to  something  annexed  to  the  soil. 

The  case  of  Horn  v.  Baker  ^  recognizes  the  same  distinction. 
This  was  a  case  respecting  the  right  of  the  assignees  of  a  bank- 
rupt to  goods  and  chattels  in  the  order  and  disposition  of  the 
bankrupt,  under  the  Statute  21  Jac.  I.  c,  19,  s,  10  &  11.  The 
articles  in  question  consisted  of  stills  and  vats.  The  stills 
were  set  in  brick-work  and  let  into  the  ground.  Some  of  the 
vats  or  worm-tubs  were  supported  by,  and  rested  upon,  brick- 
work and  timber,  but  were  not  fixed  in  the  ground;  others 
stood  on  horses  or  frames  made  of  wood,  which  were  not  let 
into  the  ground,  but  stood  upon  the  floor.  The  court  in  this 
case,  per  EUenborough,  C.  J.,  observed  that  there  was  a  material 
distinction  between  such  of  the  vats  and  stills  as  were  affixed  to 
the  freehold,  and  those  which  were  movable  being  the  ones  rest- 
ing upon  brick-work  or  frames,  which  latter  were  considered 
to  be  goods  and  chattels  within  the  meaning  of  the  act. 

The  case  of  Walker  v.  Sherman  ^^  is  the  leading  case  in  the 
United  States  upon  the  point  under  consideration.  This  was 
a  motion  to  set  aside  the  report  of  the  commissioners  in  parti- 
tion, on  the  ground  that  they  had  improperly  made  partition 
between  the  parties,  who  were  tenants  in  common  in  equal 
moieties  of  a  woolen  factory;  and  one  of  the  grounds  of  the 
motion  was,  that  the  commissioners  in  making  partition  had  mis- 
taken the  character  of  several  articles  of  machinery  belonging 
to  the  mill,  considering  them  as  personal  property,  whereas 
they  should  have  been  regarded  as  real  estate,  and  had  in  effect, 
therefore,  passed  to  the  plaintiff,  to  whom  the  mill  and  its  ap- 
purtenances were  awarded  and  set  off  in  severalty.  The  ma- 
[*13]  *chinery  in  question  consisted  of  double  carding  machines, 

8  1  B.  &  Ad.,  161   (1830). 
»9  East,  215   (1808). 
10  20  Wend.,  636  (1839). 

16 


CHAP.  I.]  ANNEXATION,    ETC.  *13 

a  picking  machine,  shearing  machine,  spinning  machine,  looms, 
etc.,  which  were  in  the  factory,  but  not  in  any  manner  affixed 
or  fastened  to  the  building  or  land,  though  they  had  been  used 
and  passed  from  one  owner  of  the  factory  to  another  as  parts  of 
the  factory,  for  eleven  years  or  more,  and  were  as  material  to  its 
performance  in  certain  departments  of  its  work  as  the  machinery 
which  was  actually  affixed  to  the  freehold,  and  which  was 
treated  as  real  estate  by  the  commissioners. 

The  opinion  of  the  court  was  delivered  by  Cowen,  J,,  who 
considered  the  question  which  arose  between  tenants  in  common, 
the  owners  of  the  fee,  as  one  to  be  decided  on  the  same  princi- 
ple as  if  it  had  arisen  between  grantor  and  grantee,  or  as  if  par- 
tition had  been  effected  by  the  parties  through  mutual  deeds  of 
bargain  and  sale  (between  which  parties  the  doctrine  of  fixtures 
making  a  part  of  the  freehold,  and  passing  with  it  is  more  ex- 
tensively applied  than  between  any  others),  and  who,  after  a 
full  and  elaborate  consideration  of  the  authorities,  deduced,  and 
laid  down  the  following  general  rule:  "In  order  to  come  within 
the  operation  of  a  deed  conveying  the  freehold,  whether  by 
metes  and  bounds  of  a  plantation,  farm  or  lot,  etc.,  or  in  terms 
denoting  a  mill  or  factory,  etc.,  nothing  of  a  nature  personal 
in  itself  will  pass  unless  it  be  brought  within  the  denomina- 
tion of  a  fixture  by  being  in  some  way  permanently,  at  least 
habitually,  attached  to  the  land  or  some  building  upon  it." 
He  then  proceeded  as  follows:  "It  need  not  be  constantly 
fastened.  It  need  not  be  so  fixed  that  detaching  will  disturb 
the  earth  or  rend  any  part  of  the  building.  I  am  not  prepared 
to  deny  that  a  machine  movable  in  itself  would  become  a  fixture 
from  being  connected  in  its  operation  by  bands  or  in  any  other 
way  with  the  permanent  machineiy,  though  it  might  be  detached 
and  restored  to  its  ordinary  place  as  easily  as  the  chain  in  Farrar 
V.  Stackpole.^  I  think  it  would  be  a  fixture  notwithstanding. 
But  I  am  unable  to  discover  from  the  papers  before  us  that  any 
of  the  machines  in  fpiestion  before  the  commissioners  were  even 
slightly  con*nected  with  the  freehold.  For  aught  I  can  [*14] 
learn,  they  were  all  worked  by  horses  or  by  hand,  having  no 
more  respect  to  any  particnlar  part  of  the  building  or  its  water 
wheel,  than  the  ordinary  movable  tools  of  such  an  establishment. 

16  l\Ie.,  1.54  (1829). 

2  17 


♦14  THE  LAW  OP  FIXTURES.  [CHAI»,  I. 

These  would  have  their  common  places,  and  be  essential  to  its 
business;  so  a  threshing-machine  and  the  other  implements  of 
the  farmer.  But  it  would  be  a  solecism  to  call  them  fixtures, 
where  they  are  not  steadily  or  commonly  attached,  even  by  bands 
or  hooks,  to  any  part  of  the  realty.  The  word  fixtures  is  de- 
rived from  the  things  signified  by  it  being  fastened,  or  fixed. 
'It  is  a  maxim  of  great  antiquity,  that  whatever  is  fixed  to  the 
realty  is  thereby  made  a  part  of  the  realty,  to  which  it  adheres, 
and  partakes  of  all  its  incidents  and  properties,'  Toml.  Law 
Diet.  Fixtures.  Hence  fixtures  are  defined  to  be  chattels  or 
articles  of  a  personal  nature  which  have  been  affixed  to  the  land. 
Id.  'It  is  an  ancient  principle  of  law,'  says  Weston,  J.,  in  Farrar 
V.  Stackpole,  'that  certain  things  which  in  their  nature  are 
personal  property,  when  attached  to  the  realty  become  part  of 
it  as  fixtures;'  and  see  Amos  &  Fer.  on  Fixt.,  ch.  1,  p.  1. 

"  It  is  not  to  be  denied  that  there  are  strong  dicta,  and  perhaps 
we  may  add  the  principle  of  several  adjudicated  exceptions, 
upon  which  we  might,  with  great  plausibility,  declare  the  ma- 
chines in  question,  so  essential  to  the  purposes  of  the  manu- 
factory, although  entirely  dissociated  with  the  freehold,  a  fit 
subject  for  entering  into  the  list  of  constructive  fixtures.  The 
general  importance  of  the  rule,  however,  which  goes  upon  cor- 
poral annexation,  is  so  great,  that  more  evil  will  result  from 
frittering  it  away  by  exceptions,  than  can  arise  from  the  hard- 
ship of  adhering  to  it  in  particular  cases.  *  *  *  -vVe  think 
the  motion  must  be  denied  with  costs,  and  the  report  of  the 
commissioners  is  confirmed." 

The  same  distinction  has  been  enforced  in  other  cases,  both 
English  and  American,  which  will  be  found  referred  to  in  the 
note  below,^  and  in  the  following  pages. 

1  Wansbrough  v.  Maton,  4  Ad.  &  E,,  884  (1836) ;  s.  c,  6  N.  &  M.  367; 
2  H.  &  W.  37;  4  L,  J.  (N.  S.),  K.  B.,  154;  5  id.  1.50,  where  a  wooden  barn 
erected  by  a  tenant,  and  resting  on,  but  not  fastened  by  mortar  or  other- 
wise, to  the  caps  of  blocks  of  stone  called  stavels,  or  staddles,  fixed  into 
the  ground  or  let  into  brickwork,  which  barn  could  be  removed  without 
injury  to  the  rest,  was  held  to  be  a  chattel.  [See,  also,  Carlin  v.  Eitter, 
68  Md.,  478,  492  (1888)  ;  Weathersdane  Park  Co.  v,  Watson,  16  Vict.,  758, 
760  (1890).]  So  in  Wiltshear  v.  Cottrell,  1  Ell.  &  Bl.,  674;  s.  C,  17  Jur. 
758;  22  L.  J.  Q.  B.  177;  18  Eng.  L.  &  Eq.,  142  (1853),  a  granary  laid  on 
a  wooden  foundation  lying  on  and  supported  by  staddles,  but  not  attached 

18 


CHAP.  I.]  ANNEXATION,    ETC.  *14 

thereto  except  by  its  weight,  was  held  to  be  a  mere  chattel.  [See,  also, 
Brannon  v.  Vaughn,  66  Ark.,  87,  90  (1898)  ;  Miller  v.  Waddingham,  91 
Cal.,  377,  379  (1891).]  See,  however,  Landon  v.  Piatt,  34  Conn.,  517 
(1868),  which  was  the  case  of  a  barn  erected  by  the  owner  of  the  land, 
on  stone  piers  resting  on  the  ground,  and  which  was  held  to  be  a  part 
of  the  realty.  [See,  also.  Central  Branch  E.  E.  Co.  v.  Fritz,  20  Kans.,  430, 
434  (1878)  ;  State  Sav.  Bank  v.  Kereheval,  65  Mo.  682  (1877)  ;  Adams  v. 
Kauwa,  6  Hawaii,  280  (1881)  ;  Doran  v.  Willard,  14  N.  Bruns.,  358  (1873)  ; 
McKenzie  v.  McDonald,  2  Nova  S.,  Dec,  11,  12    (1869).] 

So  in  O'Donnell  v.  Hitchcock,  118  Mass.,  401  (1875),  a  small  building 
erected  by  a  tenant,  a  photographer,  for  use  in  his  business,  and  built  in 
sections,  and  framed  so  as  to  be  capable  of  being  taken  apart  without  cut- 
ting, and  simply  resting  upon  the  top  of  the  unbroken  ground,  was  held 
to  be  a  mere  chattel,  and  subject  to  attachment  by  the  creditors  of  its  owner 
after  the  abandonment  of  it  and  the  premises  by  the  tenant.  [A  greenhouse 
resting  upon  the  ground,  but  not  attached  thereto,  unless  very  slightly  for 
the  purpose  of  keeping  it  steady,  is,  as  between  a  tenant  and  a  mortgagee 
of  the  land,  personal  property.  Eoyce  v.  Latshaw,  15  Colo.  App.,  420 
(1900).    See,  also,  Dixon  v.  Mackay,  38  Can.  Law  J.,  653  (Man.,  1902).] 

A  small  frame  building  called  a  cabin,  erected  upon  land  of  the  U.  S., 
by  being  set  upon  blocks  resting  upon  the  surface  of  the  ground,  and  not 
attached  thereto,  and  removable  without  disturbing  the  soil,  held  to  be  per- 
sonal property  not  passing  with  the  land,  but  removable  by  the  owner 
upon  leaving  the  land  after  its  sale  by  the  U.  S.;  and  it  seems  that  the 
same  is  true  of  a  portable  fence,  composed  of  posts  and  boards,  and  resting 
wholly  upon  the  surface  of  the  land.  Pennybacker  v.  McDougal,  48  Cal., 
160  (1874).  [See,  also,  Coram 'rs  of  Eush  County  v.  Stubbs,  25  Kans., 
322,  325  (1881);  Central  Branch  E.  E.  Co.  v.  Fritz,  20  Kans.,  430,  438 
(1878);  Dietrichs  v.  Lincoln  &  N.  W.  E.  E.  Co.,  13  Nebr.,  43  (1882). 
Contra,  Doscher  v.  Blackiston,  7  Oregon,  143,  146   (1879).] 

See,  also,  Farrant  v.  Farrant,  2  Wash.  Law  Eep.,  137  (1875),  where  a 
dwelling  house,  standing  on  blocks  or  rollers  and  not  fastened  to  the 
ground,  so  built  by  tenant  for  the  purpose  of  removal  if  necessary,  was 
held  to  be  personal  property;  Mills  v.  Eedick,  1  Neb.,  437  (1871).  [See, 
post,  p.  "134.  See,  also,  Nigro  v.  Hatch,  2  Ariz.,  144  (1886);  Security 
Loan  Co.  v.  Williamette  Mills  Co.,  99  Cal.,  636  (1893)  ;  Eobinson  v. 
Wright,  9  D.  C,  54,  .56  (1875);  Smyth  v.  Stoddard,  203  111.,  424,  432 
(1903);  Turner  v,  Kennedy,  57  Minn.,  104,  107  (1894);  Page  v.  Urick,  31 
Wash.,  601  (1903).  But  such  buildings  are  properly  assessed  as  realty. 
.Milligan   v.   Drury,   130   Mass.,   428    (1881).] 

In  Davis  v.  Jones,  2  B.  &  Aid.,  165  (1818),  where  the  question  arose  be- 
tween the  tenant  and  one  claiming  under  the  landlord,  the  articles  in  ques- 
tion were  certain  pieces  of  machinery  called  jibs,  described  as  follows: 
certain  caps  and  steps  of  timber  were  fixed  into  the  buildings,  and  the  jibs 
were  placed  on  these  caps  and  steps.  They  were  fastened  by  pins  above 
and  below,  and  might  be  taken  in  and  nut  of  the  caps  or  steps  without 
injuring  either  them   or   the   building,   but  could   not  be  removed   without 

19 


*14  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

being  a  little  injured  themselves.  They  were  usually  valued  between 
out-going  and  in-ooming  tenants.  The  court  were  of  opinion  that  the 
jibs  wore,  as  between  landlord  and  tenant,  personal  chattels.  In  coming 
to  this  conclusion  they  seem  to  liave  relied  somewhat  upon  the  fact  that 
they  were  usually  valued  between  out-going  and  in-coming  tenants,  and 
state  that  such  a  practice  could  not  rationally  have  prevailed,  if  the  things 
had  not  been  generally  understood  to  be  in  their  nature  capable  of  re- 
moval, and  not  fixtures  properly  so  called.  See,  also,  Minshall  v.  Lloyd, 
2  M.  &  W.,  450,  460  (1837).  It  was  argued  for  the  defendant  in  this  case, 
with  great  cogency  it  seems  to  us,  that  these  things  constituted  part  of 
one  entire  machine,  of  which  the  other  parts  were  fixed  to  the  freehold, 
and  that  they  did  not  come  within  the  description  of  goods  and  chattels, 
and,  therefore,  that  trover  would  not  lie  for  them.  The  case  does  not 
seem  entirely  satisfactory  upon  the  point  under  consideration,  and  has 
been  criticised  by  Mr.  Ferard  in  his  work  on  Fixtures,  page  5,  note  (a). 
See,  also.  Walker  v.  Sherman,  20  Wend.,  636,  653  (1839);  Ex  parte 
Astbury,  L.  E.,  4  Ch.  App.,  630  (1869);  Fisher  v.  Dixon,  12  CI.  &  Fin., 
312   (1845). 

In  Holbrook  v.  Chamberlin,  116  Mass.,  155  (1847);  s.  c,  17  Amer.  Eep. 
146,  a  portable  wood-cutting  machine,  weighing  about  300  lbs.,  and  stand- 
ing on  the  premises  described  in  a  lease,  but  outside  of,  and  eighteen  inches 
distant  from,  the  mill  thereon,  and  worked  by  a  belt  running  from  the 
main  shaft  to  the  factory,  was  held  to  be  a  mere  chattel,  and  not  to  pass 
by  a  lease  of  the  factory  and  land,  and  for  the  destruction  of  which  the 
lessor  could  maintain  no  action  upon  the  covenants  of  his  lease.  See,  also. 
Whiting  V.  Brastow,  4  Pick.,  310   (1826). 

So,  an  iron  safe  and  an  iron  planing-mill  not  attached  to  the  freehold, 
are  personal  property,  and  liable  to  seizure  on  fi.  fa.  against  the  owner 
of  them.  Titus  v.  Mabee,  25  111.,  257  (1861).  [A  mortgage  of  a  saw-mill 
with  all  of  its  ' '  fixtures  and  appurtenances ' '  does  not  include  an  iron 
safe.  Conner  v.  Littlefield,  79  Texas,  76,  77  (1890).  An  iron  safe  which 
is  placed  in  a  vault  before  its  completion  is  personal  property,  although 
the  vault  door  must  be  removed  in  order  to  remove  such  safe.  Sheldon 
V.  Cook,  11  Chi.  Legal  News,  76   (111.  App.,  1878).] 

[Where  stringers  were  laid  upon  earth,  and  planks  nailed  to  the  stringers, 
the  stringers  gradually  sinking  into  the  earth  by  their  own  weight,  such 
planking  does  not  become  a  part  of  the  realty,  nor  even  a  trade-fixture. 
Crerar  v.  Daniels,   109  111.  App.,  654    (1903).] 

So,  as  to  a  carding  machine  standing  on,  but  not  fastened  to,  the  floor  of 
the  building.  Taffe  v.  Warnick,  3  Blackf.,  Ill  (1832).  A  heater  placed 
in  a  vat  in  a  tannery  by  a  conditional  vendee  of  land,  the  vat  being  de- 
tached from  the  building,  except  that  a  small  piece  of  board  was  tacked 
to  the  vat  and  the  side  of  the  building,  but  which  fastening  was  unnecessary, 
and  of  no  use,  except  to  keep  the  side  standing  while  the  vat  was  being 
put  together,  is  a  mere  chattel;  and  it  seems  that  such  would  be  the  case 
even  if  placed  therein  by  the  owner  of  the  freehold.  Kaymond  v.  White, 
7  Cow.,  319  (1827). 

20 


CHAP.  I.]  ANNEXATION,    ETC.  *14 

[Wagons  constructed  of  sheet  and  cast  iron,  being  four  feet  long  and 
three  feet  wide,  and  twenty-six  inches  deep,  with  three  adjustable  wheels 
about  eight  inches  in  diameter  on  each  wagon,  used  in  a  mill  for  the 
purpose  of  holding  syrup  and  conveying  it  from  place  to  place  by  hand 
on  the  floor  of  the  mill  until  it  was  converted  into  sugar,  are  not  fixtures, 
although  sugar-mills  cannot  be  successfully  operated  without  them.  They 
do  not  enhance  the  value  of  the  mill;  they  are  not  constructively  annexed, 
but  must  be  classed  with  buckets,  barrels  and  similar  vessels.  Winslow 
V.  Bromich,  54  Kansas,  300,  305   (1894).] 

The  following  cases  also  recognize  the  doctrine  that,  as  a  general  rule, 
some  degree  of  actual  annexation  or  fixation  is  necessary  to  constitute  a 
fixture.    Laflin  v.  Griffiths,  35  Barb.,  58,  62  (1860)  ;  Potter  v.  Cromwell,  40 
N.  Y.  <1  Hand),  287,  295  (1869)  ;  Voorhees  v.  McGinnis,  48  N.  Y.,  278,  282 
(1872);  Hoyle  v.  Plattsburgh  and  Montreal  K.  E.  Co.,  54  N.  Y.,  314,  323 
(1873);  Vanderpool  v.  Van  Allen,  10  Barb.,  157,  162    (1850);   Stevens  v. 
Buffalo,  etc.,  E.  E.  Co.,  31  Barb.,  590,  605    (1858);  Beardsley  v.  Ontario 
Bank,  31  Barb.,  619,  634  (1859)  ;  Xoyes  v.  Terry,  1  Lans.,  219,  220  (1869); 
Fairis  v.  Walker,  1  Bail.,  540   (1830) ;  Lathrop  v.  Blake,  23  N.  H.,  46,  66 
(1851);  Despatch  Line  of  Packets  v.  Bellamy  Manf'g  Co.,  12  N.  H.,  205, 
234  (1841)  ;  Brown  v.  Lilie,  6  Nev.,  244  (1870)  ;  Merritt  v.  Judd.,  14  Cal., 
59,  64  (1859);  Pennybacker  v.  McDougal,  48  Cal.,  160  (1874);  Baldwin  v. 
Breed,  16  Conn.,  60,  66  (1843)  ;  Capen  v.  Peckham,  35  Conn.,  88,  93  (1868) ; 
Stockwell  v.   Campbell,   39   Conn.,   362,   364    (1872);   Potts  v.   New  Jersey 
Arms  Co.,  17  N.  J.  Eq.,  395,  404   (1866)  ;  Quimby  v.  Manhattan  Cloth  Co., 
24  N.  J.  Eq.,  260   (1873);   Teaff  v.  Hewitt,  1  Ohio  St.,  511,  527   (1853); 
Eaves  v.  Estis,  10  Kan.,  314,  316   (1872) ;  Congregational  Society  of  Du- 
buque V.  Fleming,  11  Iowa,  533,  535  (1861);  Cook  v.  Whiting,  16  111.,  480 
(1855);  Cole  v.  Eoaeh,  37  Tex.,  413,  418   (1872);  Butler  v.  Cozens,  6  Vin. 
Abr.,  357  in  margin;  s.  c.  11  Mod.,  198  (1708);  Stead  v.  Gamble,  7  East, 
325    (1806);    Hedge's    Case,    1    Leach    Cr.,    L.    240    (1779);    Anthony    v. 
Haneys,  8  Bing.,   186    (1832);   Naylor  v.   Collinge,   1   Taunt.,   19    (1807); 
Turner  v.  Cameron,  L.  E.,  5  Q.  B.,  306,  311   (1870)  ;  s.  c,  39,  L.  J.  Q.  B., 
125;  9.  B.  S.,  931 ;  22  L.  T.  (N.  S.),  525;  18  W.  R.,  544,  Duke  of  Beaufort 
v.  Bates,  2  DeG.  F.  &  J.,  381  (1862) ;  s.  c,  8  Jur.  (N.  S.),  270;  10  W.  E. 
200;  6.  L.  T.   (N.  S.),  82.     See,  however,  D'Eyncourt  v.  Gregory,  L.  R.  3 
Eq.,  382,  396  (1866)  ;  Holland  v.  Hodgson,  L.  R.,  7  C.  P.,  328,  334  (1872), 
and  the  cases  hereinafter  cited.      [Bayne  v.  Brewer  Pottery  Co.,  90  Fed., 
754   (1898);   Miller  v.  Waddingham,  11  L.  E.  A.,  510,  511    (Cal.,  1891); 
Southbridgc    Bank    v.    Mason,    147    Mass.,    500,    505    (1888);    Shopard    v. 
Blossom,  66  Minn.,  421,  423   (1896);  Farmers'  L.  &  T.  Co.  v.  Minneapolis 
Works,  35   Minn.,  543,  548    (1886);   Wolford  v.  Baxter,  33   Minn.,  12,   17 
(1884);    Loan    v.   Gregg,   55   Mo.    App.,    581,   584    (1893);    Hillcbrand   v. 
Nelson,  95  N.  W.,  1068,  1070  (Ncbr.,  1901)  ;  Williamson  v.  New  Jersey  S. 
E.  E.  Co.,  29  N.  J.  Eq.,  311,  329  (1878)  ;  Blancko  v.  Rogers,  26  N.  J.  Eq., 
563,  567    (1875);    Bellamy   v.   Davey    [1891],   3   f'h.,   540,   .544;    Kcefer   v. 
Merrill,  6  U.  C.  App.,  121   (1881)  ;  see,  also,  Tillman  v.  DeLacy,  80  Ala, 
103,  106   (1885).] 

21 


*15  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[*15J  *Among  the  cases,  however,  requiring  actual  physical 
aimoxatiou  as  au  essential  element  of  a  fixture,  there  is  an  irre- 
concilable diversity  of  opinion  as  to  the  requisite  degree  thereof 
necessary  to  constitute  a  fixture. 

[*16]  *Thus,  some  of  these  cases  require  the  chattel  to  be  sub- 
stantially annexed  to  the  freehold  in  such  a  manner  as  not  to 
[*17]  per*mit  it  to  be  separated  from  it  without  material  in;fury 
to  itself  or  to  the  freehold.^ 

In  others,  the  slightest  annexation  has  been  held  sufficient.^ 
While  still  another  class  of  authorities  reject  entirely  the  doc- 
trine that  physical  annexation  is  a  necessary  attribute  of  a 
fixture. 

1  Hill  V.  Wentworth,  28  Vt.,  428,  433  (1856)  ;  Fullam  v.  Stearns,  30  Vt., 
443,  452  (1857)  ;  Bartlett  v.  Wood,  32  Vt.,  372  (1859) ;  Harris  v.  Haynes, 
34  Vt.,  220,  225  (1861)  ;  Sweetzer  v,  Jones,  35  Vt.,  317  (1862)  ;  Lacey  v. 
Giboney,  36  Mo.,  320,  324  (1865)  ;  Montague  v.  Dent,  10  Rich.  Law.,  135, 
139  (1856);  Swift  v,  Thompson,  9  Conn.,  63,  67  (1831);  Dubois  v.  Kelly, 
10  Barb.,  496,  505  (1851);  Wade  v.  Johnston,  25  Geo.,  331,  336  (1858); 
Providence  Gas  Co.  v.  Thurber,  2  E.  I.,  15  (1851)  ;  see,  also,  Gale  v.  Ward, 
14  Mass.,  352,  356  (1817)  ;  The  Patent  Peat  Co.,  27  L.  T.  (N.  S.).  69,  71 
(1867).  [See,  also,  Marshall  v.  Bacheldor,  47  Kansas,  442,  443  (1891); 
Triplett  v.  Mays,  13  Ky.  Law  E.,  874,  875  (Superior  Ct.,  1892)  ;  Brown 
V.  Baldwin,  121  Mo.,  126,  135  (1893);  Friedlander  v.  Eyder,  30  Nebr., 
783,  789  (1890);  Conde  v.  Lee,  55  App.  Div.,  401,  403  (1900),  aff'd  171 
N.  Y,,  662  (1902);  Newport  Co.  v.  Assessors,  19  E.  I.,  632,  637  (1896).] 

A  part  of  this  diversity  may  doubtless  be  explained  by  considering  the 
ambiguity  of  the  term  fixtures,  and  the  differing  relations  of  the  parties 
between  whom  the  questions  arose  (a  more  liberal  rule,  as  will  be  seen 
hereafter,  being  applied  in  some  relations  than  in  others)  ;  but  these 
considerations  only  partially  remove  the  difficulty. 

In  Vermont  the  rule  seems  to  have  been  uniformly  held,  irrespective  of 
the  relation  of  the  parties,  ' '  that  a  chattel  is  not  to  lose  its  personal  iden- 
tity as  such  unless  it  has  been  substantially  annexed  to  the  freehold,  in  a 
manner  which  would  not  permit  it  to  be  separated  from  it  without  material 
injury  to  itself  or  to  the  freehold."  See  Hill  v.  Wentworth,  28  Vt.,  428, 
433  (18.56);  Sturgis  v.  Warren,  11  Vt.,  433  (1839);  Cross  v.  Marston, 
17  Vt.,  533  (1845);  and  the  cases  therein  and  above  cited.  [See,  also, 
Kendall  v.  Hathaway,  67  Vt.,  122,  126   (1894).] 

2  See  observations  of  Cowen,  J.,  in  Walker  v.  Sherman,  20  Wend.  636, 
655  (1839),  quoted  ante  p.  *13.  [See,  also,  Hamilton  v.  Huntley,  78  Ind., 
521,  524  (1881);  Central  Branch  E.  E.  Co.  v.  Fritz,  20  Kansas,  430,  434 
(1878).  As  between  a  mortgagor  and  a  mortgagee  of  a  leasehold,  see  Ee 
Calvert  [1898],  2  I.  E.,  501,  506.  In  the  case  of  motive  power  for  a  factory 
the  slightest  annexation  is  sufficient.  Hart  v.  Sheldon,  41  Supr.  Ct.  (34 
Hun),  38,  44  (N.  Y.,  1884).] 

22 


CHAP.  I.]  ANNEXATION,    ETC.  *18 

Farrar  v.  Stackpole  ^  is  often  referred  to  as  an  authority  on 
this  point.     The  action  was  trover  for  a  mill-chain,  dogs  and 
bars,  the  plaintiffs  claiming  title  to  the  property  under  a  deed 
*from  the  defendant  to  Asa  Redington,  and  from  him  to   [*18] 
them,  conveying  a  saw  mill,  eo  nomine,  with  the  privileges  and 
appurtenances,  and  they  proved  that  the  chain,  dogs  and  bars 
were  in  their  appropriate  places  when  the  deed  was  made,  and 
that  the  chain  was  attached  by  a  hook  to  a  piece  of  a  draft- 
chain,  which  was  fastened  to  the  shaft  by  a  spike,  the  chain 
being  prepared  for  being  hooked  and  unhooked  at  pleasure.     It 
was  insisted  that  the  chain  was  of  the  nature  of  personal  prop- 
erty, and  therefore  did  not  pass  by  a  deed  of  the  realty,  unless 
specially  named.     To  this  it  was  answered  by  the  court,  per 
"Weston,  J.,  "1st,  that  if  it  be  an  essential  part  of  the  mill,  it 
is  included  in  that  term,  whether  real  or  personal ;  2d,  that  that 
which  is  in  its  nature  personal,  may  change  its  character  if 
fixed,  used  and  appropriated  to  that  which  is  real.     Is  it  too 
much  to  say  that  the  mill  is  incomplete  without  a   chain,   a 
cable,  or  other  substitute  ?     *     *     *     If  it  is  in  its  nature  essen- 
tial to  the  mill,  it  is  included  in  that  term;  and  that,  as  has 
been  before  remarked,  whether  it  be  personal  or  real  property. 
But  upon  consideration,  we  are  of  opinion  that  it  ought  to  be 
regarded  as  appertaining  to,  and  constituting  a  part  of,  the 
roalty.     It  is  an  ancient  principle  of  law,  that  certain  things 
which  in  their  nature  are  personal  property,  when  attached  to 
the  realty  become  part  of  it  as  fixtures.     One  criterion  is,  that 
if  that  which  is  ordinarily  personal,  be  so  fixed  to  the  realty 
that   it   cannot  be   severed   therefrom  without   damage,   it  be- 
comes part  of  the  realty — as  wainscot-work  and  old  fixed  and 
dormant  tables  and  benches.     Other  things  pass  as-  incident  to 
the  realty — as  doves  in  a  dove  house,  fish  in  a  pond,  or  deer 
in  a  park.     2  Com.  Dig.  Biens,  B.     On  the  other  hand,  as  be- 
tween hindlord  and  tenant,  for  the  benefit  of  trade  in  modern 
times,  many  things  are  regarded  as  personal,  which,  as  between 
the  heir  and  executor,  would  descend  to  the  heir  as  part  of  the 
inheritance. 

3  6  Me.,  154  (1829).  See,  also,  Strickland  v.  Parker,  54  Me.,  263  (1866)  ; 
Parsons  v,  Copcland,  38  Me.,  537  (1854).  See,  however,  Capen  v.  Peckham, 
35  Conn-,,  38   (1868). 

23 


♦19  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

"Although  the  being  fastened  or  fixed  to  the  freehold  is  the 
leading  principle  in  many  of  the  cases  in  regard  to  lixtures,  it 
has  not  been  the  only  one.  Windows,  doors  aijd  window  shut- 
ters are  often  hung  but  not  fastened  to  a  building,  yet  they 
are  properly  part  of  the  real  estate,  and  pass  with  it,  because 
[*19]  *it  is  not  the  mere  fixing  or  fastening  which,  is  regarded, 
but  the  use,  nature  and  intention.  Dane's  Abr.  Ch.  76,  Art. 
8,  <^39.  *  *  *  Salt  pans  have  been  held  to  pass  [with]  the 
realty,  and  to  belong  to  the  inheritance;  because  adapted  and 
designed  for,  and  incident  to,  an  establishment  for  the  manu- 
facture of  salt.^  The  principle  is,  that  certain  things  personal 
in  their  nature,  when  fitted  and  prepared  to  be  used  with  real 
estate,  change  their  character  and  appertain  to  the  realty  as 
an  incident  or  accessory  to  its  principal.  Upon  this  ground  we 
are  satisfied  that  the  chain  in  question  being  in  the  mill  at  the 
time,  and  essential  to  its  beneficial  enjoyment,  passed  by  the 
deed  of  the  defendant  to  Asa  Redington,  under  whom  the  plain- 
tiffs claim,  independent  of  any  reference  to  usage." 

The  principle  last  above  laid  down  in  said  ease  was  approved 
in  Voorhis  v.  Freeman. ^  This  was  the  case  of  a  sale  under 
levari  facias  on  a  mortgage  of  "a  lot  or  piece  of  ground  with 
one  iron  rolling  mill  establishment  situate  thereon,  with  the 
buildings,  apparatus,  steam  engine,  etc.,  attached  to  the  said 
establishment;"  and  the  question  arose  between  the  vendee 
under  said  sale,  and  subsequent  execution  vendee  under  a  judg- 
ment against  a  former  owner  of  the  mill,  of  the  articles  in 
question  as  chattels,  which  were  iron  rolls  of  different  shapes 
and  sizes,  part  of  the  machinery  of  said  rolling  mill,  part  of 
which  were  duplicates,  but  were  necessary  and  proper  for  an 
emergency  to  replace  broken  ones,  and  all  of  Avhich  had  at  one 
time  or  another  been  in  actual  use  in  said  mill.  The  question 
was  simply  whether  such  rolls  were  real  or  personal  property, 
and  it  was  held  that  the  rolls  in  question  passed  as  part  of  the 
freehold;  but  that  even  if  they  had  not  passed,  they   could 

1  The  case  referred  to  is  probably,  Lawton  v.  Salmon,  1  H.  Bl.,  259,  note 
(1782)  ;  but  in  this  case  the  pans  were  placed  in  the  work  by  the  ancestor, 
and  were  fixed  with  mortar  to  a  brick  floor,  and  though  removable  without 
injuring  the  buildings,  the  salt  works  would  be  of  no  value  without  them, 
while  with  them  they  were  let  for  £8  per  week. 

2  2  W.  &  S.,  116  (1841). 

24 


CHAP.  I.]  AN>rEXATION,    ETC.  *20 

not  have  been  sold  as  chattels  on  levari  facias.  Pyle  v.  Pen- 
*noek  3  was  very  similar  in  its  facts,  and  was  ruled  upon  [*20] 
the  same  principle. 

These  cases  might,  perhaps,  be  sustained  upon  the  doctrine 
of  constructive  annexation,  or  upon  the  ground  that  a  tempo- 
rary severance  of  a  fixture,  with  a  view  of  its  being  replaced 
thereafter,  does  not  alter  its  nature,  (a  subject  to  be  hereafter 
considered),  without  discarding  the  requirement  of  annexation; 
the  reasoning  of  the  court,  however,  seems  to  go  to  that  extent, 
and  to  place  the  test  of  a  fixture  upon  its  having  been  fitted 
and  prepared  to  be  used  with,  and  being  essential  to,  the  bene- 
ficial enjoyment  of  the  realty;  and  subsequent  cases  in  Penn- 
sylvania have  expressly  repudiated  the  criterion  of  physical 
attachment.^  The  same  doctrine  has  also  been  more  or  less 
directly  approved  in  other  cases.^ 

3  2  W.  S.,  390  (1841).  In  this  case,  at  the  time  of  the  sheriff's  sale, 
the  housings  in  the  rolling  mill  were  filled  with  rolls,  with  the  exception  of 
one  set.  There  were  other  rolls  in  the  mill  which  had  been  removed  from 
the  housings,  and  were  not  at  that  time  connected  therewith.  The  rolls 
could  be  placed  in  the  housing  and  removed  at  pleasure,  and  it  was  usual  to 
have  more  rolls  than  housings  in  order  to  change  them  when  it  was  pro- 
posed to  manufacture  different  kinds  of  iron.  The  floor  of  the  bar-iron  mill 
was  covered  with  plates  of  defective  boiler  iron,  and  it  was  usual  and 
necessary  that  the  floor  should  be  covered  with  iron  of  some  sort.  The 
plates  were  not  manufactured  for  the  purpose  of  being  used  as  a  floor,  were 
kept  down  by  their  own  weight,  and  could  be  removed  without  injury  to  any 
other  part  of  the  building.  Both  rolls  and  plates  were  held  to  be  part  of 
the  realty,  and  to  pass  by  a  sale  of  the  rolling  mill.  See,  also,  Ex  parte 
Astlniry,  L.  R.  4  Ch.  App.,  630  (1869)  ;  Metropolitan  Counties,  etc.,  Society 
V.  Brown,  26  Beav.,  454  (1859). 

*  Christian  v.  Dripps,  28  Penn.  St.,  271,  278  (1857)  ;  Hill  v.  Sewald,  53 
Penn.  St.,  271  (1866);  Meig's  Appeal,  62  Penn.  St.,  28  (1869);  Patterson 
v.  Delaware  Co.,  70  Penn.  St.,  381,  385  (1872);  Seeger  v,  Pettit,  77  Penn. 
St.,  437  (1875);  s.  C.^  11  Alb.  Law  Jour.,  151;  1  Weekly  Not,  Cas.,  226. 
See,  also,  Gray  v.  Holdship,  17  S.  &  R.,  413  (1828).  [Morris's  App.,  88  Pa. 
St.,  368,  383  (1879)  ;  Wick  v.  Brcdin,  189  Pa.  St.,  8.3,  92  (1889)  ;  Justice  v. 
Nosquehoning  R.  R.  Co.,  87  Pa.  St.,  28,  33  (1878);  Ego  v.  Killc,  84  Pa. 
St.,  33.",,  340  (1877);  Bradley  v.  Ritchie,  12  Pa.  Dist.,  658  (1903);  Huston 
v.  Clark.  3  Pa.  Dist.,  2,  3  (1882);  Advance  Coal  Co.  v.  Miller,  4  Pa.  Dist., 
352,  .355  (1895);  Latta  v.  Cambridge  Springs  Co.,  25  Pa.  Co.,  310,  312 
(1901);  Ritchie  v.  McAllister,  14  Pa.  Co.,  267,  271  (1894);  Security  Co. 
V.  Security  Co.  of  Pottstown,  13  Montg.  Co.,  126,  130  (1897);  Williams's 
App.,  1   Monaghan,  274,  282   (1889)  ;   Central  Trust  Co.  v.  Cameron  Iron 

25 


•21  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[*21]  *The  simple  test  of  adaptation  and  preparation  to  be 
used  with,  and  being  essential  to,  the  beneficial  enjoyment  of 
the  realty,  is  properly  subject  to  the  criticism  of  utterly  con- 
founding the  rule  by  which  the  rights  of  the  vendor  and  vendee, 
heir  and  executor,  etc.,  have  been  hitherto  governed.  ''If  adap- 
tation and  necessity  for  the  nse  and  enjoyment  of  the  realty  be 
the  sole  test  of  a  fixture,  then  the  implements  and  domestic 
animals  necessary  for  the  cultivation  of  a  farm,  and  a  great 
variety  of  other  articles  subject  to  the  use  of  the  land  or  its 
appurtenances,  which  never  have  been  and  never  can  be  recog- 
nized as  such,  would  be  fixtures. "  *^  It  seems  clear,  however,  on 
the  other  hand,  that  making  physical  annexation  in  the  sense 

Co.,  21  Pitts.  Leg.  J.  (N.  S.),  377  (U.  S.  C.  C,  Pa.,  1891);  see,  also, 
Huston  V.  Clark,  162  Pa.  St.  435  (1894)  ;  Harrisburg  Light  Co.  v.  Goodman, 
129  Pa.  St.,  206  (1889);  New  Chester  Water  Co.  v.  Holly  Mfg.  Co.,  53 
Fed.,  19,  29  (U.  S.  C.  C.  A.,  Pa.,  1892),  aff'g  Holly  Mfg.  Co.  v.  New  Chester 
Water  Co.,  48  Fed.,  879,  888  (U.  S.  C.  C,  Pa.,  1891);  Wilder  v.  Kent, 
15  Fed.,  217  (U.  S.  C.  C,  Pa.,  1883).] 

5  Palmer  v.  Forbes,  23  111.,  301,  313  (1860);  Huebschmann  v.  McHenry, 
29  Wise,  655,  661  (1872);  Bryan  v.  Lawrence,  5  Jones'  Law.,  337  (1858); 
Latham  v.  Blakely,  70  N.  C,  368  (1874) ;  Deal  v.  Palmer,  72  N.  C,  582 
(1875).  See,  also,  Hunt  v.  Bullock,  23  111.,  320  (1860);  Minnesota  Co.  v. 
St.  Paul  Co.,  2  Wall.,  609,  646,  note  (1864)  ;  Cole  v.  Koach,  37  Tex.,  413, 
419  (1872);  Hoyle  v.  Plattsburg,  etc.,  E.  R.  Co.,  51  Barb.,  62  (1868),  per 
Ingraham,  J.;  s.  c,  54  N.  Y.,  314;  Fisher  v.  Dixon,  12  CI.  &  Fin.,  312 
(1845)  ;  Brown  Fixt.,  §  76  a.  [Cary  Hardware  Co.  v,  McCarty,  10  Colo. 
App.,  200,  220  (1897);  Otis  v.  May,  30  111.  App.,  581,  586  (1888);  Kloess 
V.  Katt,  40  111.  App.,  99,  100  (1891);  Dutton  v.  Ensley,  21  Ind.  App.,  46, 
49  (1898);  Green  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.,  8  Kansas  App.,  611, 
613  (1899);  Marshall  v.  Bacheldor,  47  Kansas,  442,  443  (1891);  Eeyman 
V,  Henderson  Nat.  Bank,  17  Ky.  Law  R.,  1291,  1292  (1896);  Davis  v. 
Eastham,  4  Ky.  Law  R.,  850,  851  (1883)  ;  Equitable  Trust  Co.  v.  Christ, 
47  Fed.,  756,  757  (U.  S.  C.  C,  Mich.,  1880)  ;  Brown  v.  Reno  Power  Co., 
55  Fed.,  228,  234  (U.  S.  C.  C,  Nev.,  1893);  McRea  v.  Central  Bank,  66 
N.  Y.,  489,  495  (1876);  Berliner  v.  Piqua  Club,  66  N,  Y.  Supp.,  791,  792 
(1900)  ;  Taylor  v.  Collins,  51  Wis.,  123,  129  (1881)  ;  Dickson  v.  Hunter, 
29  Gr.  Ch.,  73  (Ont.,  1881);  McDonald  v.  Weeks,  8  Gr.  Ch.,  297  (Ont., 
1860)  ;  Pronguey  v.  Gurney,  37  U.  C.  Q.  B.,  347,  353  (1875)  ;  Kirkpatrick 
V.  Cornwall  St.  Ry.  Co.,  2  Ont.  Law  R.,  113,  123  (App.,  1901) ;  see,  also, 
Hill  V.  Mundy,  89  Ky.,  36,  38  (1889)  ;  Pope  v.  Jackson,  65  Maine,  162, 
165   (1876);  Smith  v.  Blake,  96  Mich.,  542,  544   (1893).] 

6  Per  Hartley,  C.  J.,  in  Teaff  v.  Hewitt,  1  Ohio  St.,  511,  529  (1853); 
see,  also,  Walker  v.  Sherman,  20  Wend.,  636,  654   (1839),  per  Cowen,  J. 

26 


CHAP.  I.]  ANNEXATION,    ETC.  *22 

in  which  the  term  is  used  by  Mr.  Ferard  in  his  work  on  fix- 
tures/ the  sole  test,  or  even  a  necessary  element  of  a  fixture, 
is  entirely  too  arbitrary  and  artificial  a  rule.  Moreover  the 
admitted  and  unquestioned  exceptions  of  the  cases  of  construc- 
tive annexation,  of  which  keys  belonging  to  a  house  are  a  famil- 
iar instance,  do  not  seem  consistent  with  the  correctness  of  the 
rule.  Undoubtedly  physical  annexation  exists  in  the  great  major- 
ity of  cases  under  this  branch  of  the  law,  and  is  an  important, 
and  often  as  bearing  upon  the  question  of  intention,  a  con- 
trolling element  in  determining  the  question  whether  an  article 
is  or  is  not  a  fixture;  but  the  weight  of  modern  authority  and 
of  reason,  keeping  in  mind  the  exceptions  as  to  constructive 
annexation  admitted  by  all  the  authorities  to  exist,  seems  to 
establish  the  doctrine  that  the  true  criterion  of  an  irremovable 
fixture  consists  in  the  united  application  of  several  tests : 

1st.     Real  or  constructive  annexation  of  the  article  in  ques- 
tion to  the  realty.^ 

*2d.    Appropriation  or  adaptation  to  the  use  or  purpose  [*22] 
of  that  part  of  the  realty  with  which  it  is  connected.** 

3d.  The  intention  of  the  party  making  the  annexation  to 
make  the  article  a  permanent  accession  to  the  freehold,  this 

[See,  also,  Southbridge  Bank  v.  Mason,  147  Mass.,  500,  505  (1888) ;  Hille- 
brand  v.  Nelson,  95  N.  W.,  1068,  1070  (Nebr.,  1901);  Williamson  v. 
New  .Jersey  S.  R.  E.  Co.,  29  N.  J.  Eq.,  311,  328   (1878).] 

7  Page  2. 

8  In  New  Hampshire  it  is  deemed  necessary  that  machines  or  other  ar- 
ticles should  in  some  way  have  been  connected  with  the  realty,  or  have  been 
80  placed  that  the  removal  of  them  would  involve  cither  the  destruction 
or  impairment  or  substantial  injury  of  the  freehold,  in  order  that  the 
same  should  be  regarded  as  constituting  a  part  of  it.  But  the  character 
of  the  fastening,  as  being  slight  or  otherwise,  is  a  criterion  of  a  question- 
able character;  more  depends  on  the  nature  of  the  article  and  its  use,  as 
connected  with  the  use  of  the  freehold.  See  Despatch  Line  of  Packets  v. 
Bellamy  Man'f 'g  Co.,  12  N.  H.,  205,  233  (1841) ;  Lathrop  v.  Blake,  23  N. 
H.,  46,  66  (1851)  ;  Burnsido  v.  Twitchell,  43  N.  H.,  390,  394  (1861)  ;  Fort- 
man  V.  Gocpper,  14  Ohio  St.,  558,  .567  (1863);  Wagner  v.  Cleveland,  etc., 
R.  R.  Co.,  22  Ohio  St.,  56.3,  577   (1872). 

"It  is  the  permanent  and  habitual  annexation,  and  not  the  manner  of 
fastening,  that  determines  when  personal  proporty  becomes  a  part  of  the 
realty."  Strickland  v.  Parker,  54  Me.,  263  (1866).  Sec,  also,  Parsons  v. 
Copeland,  38  Me.,  537  (1854). 

0  See  cases  cited  in  note  (s)  supra. 

27 


*22  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

intention  being:  inferred  from  the  nature  of  the  article  affixed, 
the  rehition  and  situation  of  the  party  making  the  annexation 
and  the  policy  of  the  law  in  relation  thereto,  the  structure  and 
mode  of  the  annexation  and  the  purpose  or  use  for  which  the 
annexation  has  been  niade.^*^ 

10  The  rule  is  laid  down  in  Teaflf  v.  Hewitt,  1  Ohio  St.,  511,  530  (1853), 
substantially  as  above  stated,  except  that  actual  annexation  alone  is  made 
a  requisite  in  the  first  subdivision  of  the  rule.  The  rule  as  stated  in  Teaflf 
V.  Hewitt,  is  approved  in  Eaves  v.  Estes,  10  Kan.,  314,  316  (1872)  ;  Funk 
V.  Brigaldi,  4  Daly,  361  (1873) ;  Potter  v.  Cromwell,  40  N.  Y.,  287,  296 
(1869)  ;  Quinby  v.  Manhattan  Cloth  Co.,  24  N.  J.  Eq.,  260  (1873)  ;  Potts 
V.  New  Jersey  Arms  Co.,  17  N.  J.  Eq.,  395,  404  (1866)  ;  Kogers  v.  Brokaw, 
25  N.  J.  Eq.,  496,  498  (1875)  ;  Edwards  v.  Derrickson,  28  N.  J.  Law, 
39,  56  (1859);  Eedlon  v.  Barker,  4  Kan.,  445,  451  (1868);  Eogers  v. 
Crow,  40  Mo.,  96  (1867);  Green  v.  Phillips,  26  Gratt.,  752,  759  (1875). 
See,  also,  Fortman  v.  Goepper,  14  Ohio  St.,  558,  567  (1863).  [Tillman  v. 
DeLacy,  80  Ala.,  103  (1885)  ;  Langston  v.  State,  96  Ala.,  44,  46  (1891)  ; 
Eogers  v.  Prattville  Mfg.  Co.,  81  Ala.,  483  (1886);  DeLacy  v.  Tillman,  83 
Ala.,  155  (1887);  Fechet  v.  Drake,  2  Ariz.,  239  (1887);  Markle  v.  Stack- 
house,  65  Ark.,  23,  26  (1898)  ;  Lavenson  v.  Standard  Soap  Co.,  80  Ca'l., 
245,  250  (1889);  Fratt  v.  Whittier,  58  Cal.,  126,  131  (1881);  Eoseville 
Min.  Co.  V.  Iowa  Gulch  Co.,  15  Colo.,  29,  32  (1890);  Fisk  v.  People's 
Bank,  14  Colo.  App.,  21,  26  (1899);  Tolles  v.  Winton,  63  Conn.,  440,  445 
(1893);  Towson  v.  Smith,  13  App.,  D.  C,  48,  56  (1898);  Sword  v.  Low, 
122  111.,  487,  496  (1887);  Hacker  v.  Munroe,  176  III.,  384,  396  (1898); 
Arnold  v.  Crowder,  81  111.,  56,  58  (1876);  Calumet  Iron  Co.  v.  Lathrop, 
36  111.  App.,  249,  255  (1889);  Kaestner  v.  Day,  65  111.  App.,  623,  630 
(1895);  Chapman  v.  Union  Mut.  L.  Ins.  Co.,  4  111.  App.,  29,  35  (1879); 
Ward  v.  Earl,  86  111.  App.,  635,  639  (1899);  Berger  v.  Hoerner,  36  111. 
App.,  360,  362  (1889)  ;  Spinney  v.  Barbe,  43  111.  App.,  585,  586  (1892)  ; 
Sheldon  v.  Cook,  11  Chi.  Leg.  News,  76  (111.  App.,  1878);  Binkley  v. 
Forkner,  117  Ind.,  176,  180  (1888)  ;  White  v.  Cincinnati  E.  &  M.  E.  E., 
71  N.  E.,  276  (Ind.  App.,  1904)  ;  Thomson  v.  Smith,  111  Iowa,  718, 
721  (1900);  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57,  62  (1876); 
Central  Branch  E.  E.  Co.  v.  Fritz,  20  Kan.,  430,  435  (1878);  Dodge 
City  Water  Co.  v.  Alfalfa  Land  Co.,  64  Kan.,  247,  252  (1903); 
Atchison,  T.  &  S.  F.  E.  E.  Co.  v.  Morgan,  42  Kan.,  23  (1889);  Central 
Branch  E.  E.  Co.  v.  Fritz,  20  Kan.,  430,  435  (1878);  Shoemaker  v. 
Simpson,  16  Kan.,  43,  49  (1876);  Cook  v.  Condon,  6  Kan.  App.,  574,  584 
(1897);  Clore  v.  Lambert,  78  Ky.,  224,  226  (1879);  Davis  v.  Eastham, 
81  Ky.,  116,  118  (1883);  Triplett  v.  Mays,  13  Ky.  Law  E.,  874,  875 
(Superior  Ct.,  1892)  ;  Hill  v.  Eosenfeld,  10  Ky.  Law  E.,  496  (Circ.  Ct., 
1888);  Hinkley  Iron  Co.  v.  Black,  70  Me.,  473,  479  (1880);  Pope  v. 
Jackson,  65  Me.,  162,  166  (1876);  Dudley  v.  Hurst,  67  Md.,  44  (1887); 
Schaper  v.  Bibb,  71  Md.,   145,  149    (1889);   Hubbell  v.  East  Cambridge 

28 


CHAP.  I.]  ANNEXATION,    ETC.  *22 

Bank,  132  Mass.,  447,  448  (1882) ;  Hopewell  Mills  v.  Taunton  Bank,  150 
Mass.,  519,  522  (1890);  Leonard  v.  Stickney,  131  Mass.,  541,  542  (1881); 
Smith  Paper  Co.  v.  Servin,  130  Mass.,  511,  512  (1881);  Aldine  Mfg.  Co. 
V.  Barnard,  84  Mich.,  632,  638  (1891)  ;  Higgins  v.  Kusterer,  41  Mich.,  318, 
325  (1879);  Wheeler  v.  Bedell,  40  Mich.,  693,  696  (1879);  Wolford  v. 
Baxter,  33  Minn.,  12,  17  (1884);  Pond  Co.  v.  O'Connor,  70  Minn.,  266, 
268  (1897);  Thomas  v.  Davis,  76  Mo.,  72  (1882);  State  Sav.  Bank  v. 
Kercheval,  65  Mo.,  682,  686  (1877);  Goodin  v.  Elleardsville  Hall  Ass'n, 
5  Mo.  App.,  289,  294  (1878)  ;  Tyler  v.  White,  68  Mo.  App.,  607,  610  (1897)  ; 
Donnewald  v.  Turner  Co.,  44  Mo.  App.,  350,  352  (1891);  Davis  v.  Mugan, 
56  Mo.  App.,  311  (1893);  Loan  v.  Gregg,  55  Mo.  App.,  581,  584  (1893); 
Freeman  v.  Lynch,  8  Neb.,  192,  199  (1879)  ;  Hillebraud  v.  Nelson,  95 
N.  W.,  1068,  1070  (Neb.,  1901);  Brownell  v.  Fuller,  60  Neb.,  558,  564 
(1900) ;  Langdon  v.  Buchanan,  62  N.  H.,  657  (1883)  ;  General  Electric 
Co.  V.  Transit  Co.,  57  N.  J.  Eq.,  460,  470  (1898)  ;  Feder  v.  VanWinkle,  53 
N.  J.  Eq.,  370,  372  (1895);  Speiden  v.  Parker,  46  N.  J.  Eq.,  292,  293 
(1889);  Blancke  v.  Eogers,  26  N.  J.  Eq.,  563,  567  (1875);  Knickerbocker 
Trust  Co.  v.  Penn  Cordage  Co.,  58  Atl.,  409  (N.  J.,  1904)  ;  62  N.  J.  Eq., 
624,  639  (1901);  Fortescue  v.  Bowler,  55  N.  J.  Eq.,  741,  744  (1897); 
Feder  v.  Van  Winkle,  53  N.  J.  Eq.,  370,  372  (1895)  ;  Watson  v.  Watson 
Mfg.  Co.,  30  N.  J.  Eq.,  483,  487  (1879)  ;  Williamson  v.  New  Jersey  S.  E.  E. 
Co.,  29  N.  J.  Eq.,  311,  329  (1878)  ;  McMillan  v.  Fish,  29  N.  J.  Eq.,  610, 
612  (1878);  Hughes  v.  Lambcrtville  Light  Co.,  53  N.  J.  Eq.,  435,  438 
(1895);  Eoddy  v.  Brick,  42  N.  J.  Eq.,  218,  224  (1886);  Doughty  v.  Owen, 
19  Atl.,  540  (N.  J.  Ch.,  1890)  ;  Erdman  v.  Moore,  58  N.  J.  Law,  445,  461 
(1896)  ;  VanKeuren  v.  Central  E.  E.  Co.  of  N.  J.,  38  N.  J.  Law,  165,  166 
(1875);  Jackson  ads.  Turrell,  39  N.  J.  Law,  329,  330  (1877);  Ward  v, 
Kilpatrick,  85  N.  Y.,  413,  419  (1881);  McEea  v.  Central  Bank,  66  N.  Y., 
489,  496  (1876)  ;  Cosgrovo  v.  Troescher,  62  App.  Div.,  123,  126  (N.  Y., 
1901);  People  v.  Waldron,  26  App.  Div.,  527  (N.  Y.,  1898);  Eichmond  v. 
Freemans  Nat.  Bank,  86  App.  Div.,  152,  159  (N.  Y.,  1903)  ;  Fitzgerald  v. 
Atlanta  Ins.  Co.,  61  App.  Div.,  350,  355  (N.  Y.,  1901);  Scobell  v.  Block, 
89  Supr.  Ct.  (82  Hun),  223,  225  (N.  Y.,  1894);  Cooper  v.  Harvey,  16 
N.  Y.  Supp.,  660,  662  (1891)  ;  Jermyn  v.  Hunter,  93  App.  Div.,  175  (N.  Y., 
1904)  ;  Phoenix  Mills  v.  Miller,  4  N.  Y.  St.  E.,  787,  791  (Supr.  Ct.,  1886)  ; 
Walrath  v.  Henderson,  6  N.  Y.  Wkly.  Dig.,  293  (Supr.  Ct.,  1878);  Henry 
V.  VonBrandenstein,  12  Daly,  480,  481  (N.  Y.  C.  P.,  1884);  Grosz  v. 
Jackson,  6  Daly,  463,  464  (N.  Y.  C.  P.,  1876)  ;  Causey  v.  Empire  Mills,  119 
N.  C,  180,  181  (1896);  Foote  v.  Gooch,  96  N.  C,  265  (1887);  Schneider 
V.  Schneider,  6  Ohio  Dec,  106,  107  (1897);  Chaflfee  v.  Fish,  2  Ohio  Dec, 
89,  90  (1894);  Burkhardt  v.  Hoppln,  6  Ohio  Dec,  127,  128  (1897); 
Barker  v.  Cincinnati  Brick  Co.,  4  Ohio  Dec,  270,  271  (1896);  Be  George 
Weber  Brew.  Co.,  Ohio  Prob.  (Gnpbol),  193,  195  (Hamilton  Co.,  1889); 
Central  Trust  Co.  v.  Cincinnati  Hotel  Co.,  26  Weekly  T^aw  Bulletin,  149 
(Superior  Ct.  of  Cincinnati,  Ohio)  ;  Garvcn  v.  Hngnc,  14  Wkly.  Cin.  Law 
Bui.,  175,  177  (C.  C,  1885);  Matthicsen  v.  Arata,  32  Ore.,  342,  346 
(1897);   Honeyman  v.  Thomas,  25  Ore,  539   (1894);  Helm  v.  Gilroy,  a« 

29 


♦22  THE  Ixi\.W  OF  FIXTURES.  [CHAP.  I. 

Of  these  three  tests,  the  clear  tendency  of  modern  authority 
seems  to  be  to  give  pre-eminence  to  the  question  of  intention 
to  make  the  article  a  pernument  accession  to  the  freehold,  and' 

Ore.,  517,  522  (1891);  Henkle  v.  Dillon,  15  Ore,  610,  614  (1888); 
Doseher  v.  Biackiston,  7  Ore.,  143,  146  (1879);  Alberson  v.  Elk  Creek 
Min.  Co.,  39  Ore.,  552,  559  (1901)  ;  Kitchie  v.  McAllister,  14  Pa.  Co., 
267,  269;  Padgett  v.  Clevelaud,  33  S.  C,  339,  347  (1889);  Johnson  v. 
Patterson,  81  Tenn.,  626,  632  (1884);  Cubbins  v.  Ayres,  72  Tenn.,  329,  331 
(1880)  ;  Grewar  v.  Alloway,  3  Tenn.  Ch.,  584,  585  (1877)  ;  Keating  Mach. 
Co.  V.  Marshall  Power  Co.,  74  Tex.,  605,  608  (1889);  Jones  v.  Bull,  85 
Tex.,  136,  139  (1892)  ;  Phelan  v.  Boyd,  14  S.  W.,  290,  294  (Tex.,  1890) ; 
Kotan  Grocery  Co.  v.  Dowlin,  77  S.  W.,  430  (Tex.  Civ.  App.,  1903)  ;  Ice 
Co.  V.  Lone  Star  Works,  15  Tex.  Civ.  App.,  694,  697  (1897)  ;  Willis  v. 
Munger  Mach.  Co.,  13  Tex.  Civ.  App.,  677,  681  (1896)  ;  Hackett  v. 
Amsden,  57  Vt.,  432,  436  (1885)  ;  Chase  v.  Tacoma  Box  Co.,  11  Wash., 
377,  381  (1895);  Gunderson  v.  Swarthout,  104  Wis.,  186,  190  (1899); 
Homestead  Land  Co.  v.  Becker,  96  Wis.,  206,  211  (1897)  ;  Walker  v.  Grand 
Eapids  Mill  Co.,  70  Wis.,  92,  96  (1887)  ;  Lipsky  v.  Borgmann,  52  Wis., 
256,  260  (1881);  Jenkins  v.  McCurdy,  48  Wis.,  628,  629  (1879);  Dowall  v. 
Miln,  1  Sess.  Cas.,  4th  Ser.,  1180  (Scot.,  1874)  ;  Chidley  v.  Churchwardens 
(1874),  32  Law  T.  R.,  486;  Keefer  v.  Merrill,  6  U.  C.  App.,  121  (1881); 
Schreiber  v.  Malcolm,  8  Gr.  Ch.,  433  (Ont.,  1860)  ;  see,  also,  Madison  v. 
Madison,  206  111.,  534,  538  (1904);  Western  U.  T.  Co.  v.  Burlington  & 
Southwestern  Ey.  Co.,  3  McCrary,  130  (U.  S.  C.  C,  Iowa,  1882)  ;  Pope  v. 
Jackson,  65  Me.,  162,  165  (1876);  Stebbins  v.  Culbreth,  86  Md.,  656, 
657  (1898)  ;  Southbridge  Sav,  Bank  v,  Stevens  Tool  Co.,  130  Mass.,  547, 
551  (1881);  Allen  v.  Mooney,  130  Mass.,  155,  157  (1881);  Southbridge 
Sav.  Bank  v.  Exeter  Mach.  Works,  127  Mass.,  542,  545  (1879)  ;  Towne  v. 
Fiske,  127  Mass.,  125,  131  (1879);  MeConnell  v.  Blood,  123  Mass.,  47, 
50  (1877);  Seudder  v.  Anderson,  54  Mich.,  122,  126;  Lyle  v.  Palmer,  42 
Mich.,  314,  317  (1879);  Graton  &  Knight  Co.  v.  Woodworth-Mason  Co., 
69  N.  H.,  177,  178  (1897);  Keve  v.  Paxton,  26  N.  J.  Eq.,  107,  109 
(1875);  Temple  Co,  v.  Penn  Mut.  Ins.  Co.,  69  N.  J.  Law,  36  (1903); 
Pfluger  v.  Carmiehael,  54  App.  Div.,  153,  154  (N.  Y.,  1900)  ;  Be  Eureka 
Mower  Co.,  93  Supr.  Ct.  (86  Hun),  309,  312  (N.  Y.,  1895);  Kendall  v. 
Hathaway,  67  Vt.,  122,  127  (1894)  ;  Haskin  Wood  Co.  v.  Cleveland  Co.,  94 
Va.,  439,  447  (1897);  Morotock  Ins.  Co.  v.  Eodefer,  92  Va.,  747,  752 
(1896);  Cherry  v.  Arthur,  5  Wash.,  787,  788  (1893);  Knox  v.  Brotherton, 
14  N.  S.  W.,  Supr.  Ct.,  185,  189   (1875).] 

Tn  Voorhees  v.  McGinnis,  48  N.  Y.,  278,  282  (1872),  the  rule  is  stated 
substantially  as  above,  and  recognizes  the  existence  of  the  so-called  excep- 
tional cases  of  constructive  annexation;  "those  articles  which  are  not  them- 
selves annexed,  but  are  deemed  to  be  of  the  freehold  from  their  use  and 
character,  such  as  mill  stones,  fences,  statuary  and  the  like. ' '  See  also 
Tifft  v.  Horton,  53  N.  Y.,  377  (1873),  and  cases  cited  in  next  note. 

30 


CHAP.  I.]  ANNEXATION,    ETC.  *22 

the  others  seem  to  derive  their  chief  value  as  evidence  of  such 
intention.^  ^ 

11  Strickland  v.  Parker,  54  Me.,  263,  266   (1866) ;  Parsons  v.  Copeland, 
38  Me.,  537,  5-46  (1854)  ;  Goddard  v.  Bolster,  6  Me.,  427   (1830)  ;  Capen  v. 
Peckham,  35  Conn.,  88   (1868);  s.  c,  9  Am.  L.  Eeg.   (N.  S.),  136;  Stock- 
well  V.  Campbell,  39  Conn.,  362,  364  (1872);  Alvord  Carriage  Man'f'g  Co. 
V.  Gleason,  36  Conn.,  86   (1869)  ;  Linahan  v.  Barr,  41  Conn.,  471   (1874) ; 
Pea  V.  Pea,  35  Ind.,  387,  391  (1871)  ;  Crane  v.  Brigham,  11  N.  J.  Eq.,  29, 
35  (1855)  ;  Sogers  v.  Brokaw,  25  N.  J.  Eq.,  496,  498   (1875) ;  Snedeker  v. 
Warring,  12  N.  Y.,  170,   175    (1854)  ;   Potter  v.  Cromwell,  40  N.  Y.,  287 
(1869);   Funk  v.  Brigaldi,  4  Daly,  359   (1873);   McEae  v.  Central  Natn'l 
Bank,  50  How.  Pr.,   51    (1874);    Farrar  v.   Chauffetete,   5  Den.,   527,   531 
(1848);  Congregational  Society  of  Dubuque  v.  Fleming,  11  Iowa,  533,  536 
(1861)  ;   Coddington  v.  Beebe,  29  N.  J.  Law,  550,  559    (1862)  ;   Potter  v. 
Cromwell,   40   N.   Y.,   287    (1869);    Weathersby  v.   Sleeper,   42   Miss.,   732 
(1869);   Perkins  v.  Swank,  43  Miss.,  349   (1870);   Tate  v.  Blackburne,  48 
Miss.,  1,  6  (1873);  Weston  v.  Weston,  102  Mass.,  514,  519   (1869)  ;  Dooley 
V.  Crist,  25  111.,  551   (1861);  Goff  v.  O'Conner,  16  111.,  423   (1855);  Smith 
V.  Moore,  26  111.,  392,  393  (1861)  ;  Ogden  v.  Stock,  34  111.,  522,  527  (1864)  ; 
Kelly  V.  Austin,  46  111.,  156  (1867);  Fortm.an  v.  Goepper,  14  Ohio  St.,  558, 
567   (1863) ;  Wagner  v.  Cleveland,  etc.,  R.  E.  Co.,  22  Ohio  St.,  563,  577 
(1872);    Hill   v.   Sewald,   53   Penn.   St.,   271    (1866);    Meigs's   Appeal,   62 
Penn.  St.,  28    (1869)  ;   Hill  v.  Wentworth,  28  Vt.,  428   (1856)  ;   Harris  v. 
Haines,  34  Vt.,  220,  225  (1861)  ;  Sweetzer  v.  Jones,  35  Vt.,  317,  322  (1862)  ; 
McDavid  v.  Wood,  5  Heisk.,  95   (1871);  Cannon  v.  Hare,  1  Tenn.,  Ch.  22 
(1872);   Seeger  v.  Pettit,   77  Penn,  St.,  437    (1875);    s.   C,  .11   Alb.  Law 
Jour.,  151;   1  Weekly  Not.  Cas.,  226;   Shoemaker  v.  Simpson,  Sup.  Ct.  of 
Kansas  (1875);  3  Cent.  Law  Jour.,  132;  Lancaster  v.  Eve,  5  C.  B.  (N.  S.), 
717  (1859);  s.  c,  28  L.  J.  C.  P.,  235;  5  Jur.   (N.  S.),  683;   Hellawell  v. 
Eastwood,  6  Exch.,  295,  312   (1851);  Waterfall  v.  Penistonc,  6  Ell.  &  B., 
876.   889    (18.56);   Holland  v.   Hodgson,  L.  E.   7   C.   P.,   328,  334    (1872); 
Parsons  v.   Hind,   14  W.  E.,   861    (1866);   Wood  v.   Hewitt,   8  Q.  B.,  916 
(1846);   Mant  v.  Collins   (1841),  cited  in  Wood  v.  Hewitt   (supra).     See, 
also.  Ford  v.  Cobb,  20  N.  Y.,  348  (1859) ;  Murdock  v.  Gilford,  18  N.  Y.,  28 
(1858)  ;  Tifft  v.  Horton,  53  N.  Y.,  377  (1873)  ;  Winslow  v.  Merchant's  Ins. 
Co.,  4  Met.,  310  (1842);  Breariey  v.  Cox,  24  N.  J.  Law,  289  (18.54);  Hunt 
V.   Mullanphy,  1   Mo.,  508    (1825);   D 'Eyncourt  v.  Gregory,  L.  R.,  3  Eq., 
382,  396  (1866);  Lawton  v.  Salmon,  1  H.  Bl.,  259,  note  (1782);  Lancaster 
V.  Eve,  5  C.  B.  (N.  S.),  717  (18.59)  ;  2  Kent  Com.,  343;  and  cases  cited  ante 
in  notes.     See,  however,  contra  Treadway  v.  Sharon,  7  Nev.,  37,  42  (1871). 
[The   following  cases  lay  great  stress  upon   intention   as  a  test:      Hill  v. 
National  Bank,  97  U.  S.,  450,  453  (1878)  ;  Langston  v.  State,  96  Ala.,  44,  47 
(1891);  Nelson  v.  Howison,  122  Ala.,  573,  578  (1898);  Choate  v.  Kimball, 
.56  Ark.,  55   (1892);  Bemis  v.  First  Nat.  Bank,  63  Ark.,  625,  629   (1897); 
Jordan  v.  Myres,  126  Cal.,  565,  570  (1899)  ;  Morey  v.  Hoyt,  62  Conn.,  542, 
559   (1893);   Camp  v.   Charles  Thatcher  Co.,   75   Conn.,   165,   170    (1902); 

31 


•22  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

Watertown  Steam  Eng.  Co.  v.  Davis,  5  Houston,  192,  213  (Del.,  1877); 
Smith  V.  Otlom,  03  Ga.,  499,  503  (1879);  Arnoia  v.  Crowiler,  81  111.,  56, 
58  (187G) ;  Filiold  v.  Farmers  Nat.  Bauk,  148  111.,  163  (1893) ;  Thielman 
V.  Carr,  75  111.,  385,  392  (1874) ;  Salter  v.  Sample,  71  111.,  430,  433  (1874) ; 
Baker  v.  McClurg,  96  111.  App.,  165,  174  (1901),  aff'd  198  111.,  28  (1902); 
Fifield  V.  Farmers  Bank,  47  111.  App.,  118,  123  (1892)  ;  Ellison  v.  Salem 
Min.  Co.,  43  111.  App.,  120,  126  (1889)  ;  Andrews  v.  Chandler,  27  111.  App., 
103,  109  (1888)  ;  Chapman  v.  Union  Mut.  L.  Ins.  Co.,  4  111.  App.,  29,  35 
(1879) ;  Jones  v.  Ramsey,  3  111.  App.,  303,  312  (1878) ;  Crerar  v.  Daniels, 
109  III.  App.,  654,  656  (1903);  MeKinley  v.  Smith,  25  111.  App.,  168,  175 
(1886);  Horn  v.  Indianapolis  Nat.  Bank,  125  Ind.,  381,  389  (1890); 
Hamilton  v.  Huntley,  78  Ind.,  521,  524  (1881) ;  McFarlane  v.  Foley,  27  Ind. 
App.,  484,  487  (1901);  Johnson  v.  Mosher,  82  Iowa,  29,  31  (1891);  West 
V.  Farmers'  Mut.  Ins.  Co.,  117  Iowa,  147,  151  (1902);  Fletcher  v.  Kelly, 
88  Iowa,  475,  486  (1893);  Neilson  v.  Iowa  Eastern  E.  Co.,  51  Iowa,  184, 
715  (1879)  ;  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57,  63  (1876)  ;  Shoe- 
maker V.  Simpson,  16  Kan.,  43,  50  (1876)  ;  Commissioners  of  Rush  County 
V.  Stubbs,  25  Kan.,  322,  325  (1881);  McDonald  v.  Shepard,  25  Kan.  112, 
115  (1881)  ;  Docking  v.  Frazell,  38  Kan.,  420,  423  (1888)  ;  Traders  Bank 
V.  First  Nat.  Bank,  6  Kan.  App.,  400  (1897)  ;  Clore  v.  Lambert,  78  Ky., 
224,  231  (1897)  ;  Hill  v.  Mundy,  89  Ky.,  36,  38  (1889)  ;  Elizabethtown  Coal 
Co.  V.  Elizabethtown,  13  Ky.  Law  E.,  96  (Super.  Ct.,  1891);  Hayford  v. 
Wentworth,  97  Me.,  347,  350  (1903);  Eeadfield  Telephone  Co.  v.  Cyr,  95 
Me.,  287,  289  (1901);  Lapham  v.  Norton,  71  Me.,  83,  86  (1880);  Chase  v. 
W'ingate,  68  Me.,  204,  206  (1878) ;  Eidgeway  Stove  Co.  v.  Way,  141  Mass., 
557,  560  (1886) ;  :Manwaring  v.  Jenison,  61  Mich.,  117,  134  (1886)  ;  Conrad 
V.  Saginaw  Min.  Co.,  54  Mich.,  249,  256  (1884)  ;  Ferris  v.  Quimby,  41 
Mich.,  202,  206  (1879);  Bewick  v.  Fletcher,  41  Mich.,  625,  626  (1879); 
Harris  v.  Hackley,  127  Mich.,  46,  50  (1901)  ;  Lansing  Works  v.  Wilbur,  111 
Mich.,  413,  421  (1897)  ;  Coleman  v.  Stearns  Mfg.  Co.,  38  Mich.,  30  (1878)  ; 
Beaupre  v.  Dwyer,  43  Minn.,  48.5,  487  (1890)  ;  Progress  Mach,  Co.  v.  Gratiot 
Brick  Co.,  151  Mo.,  501,  517  (1899)  ;  St.  Louis  Eadiator  Co.  v.  Carroll,  72 
Mo.  App.,  315,  319  (1879)  ;  Cooke  v.  McNeil,  49  Mo.  App.,  81,  84  (1892) ; 
Hooven  v.  John  Featherstone's  Sons,  111  Fed.,  81,  94  (U.  S.  C.  C.  A.,  Mo., 
1901);  Arlington  Mill  Co.  v.  Yates,  57  Neb.,  286,  292  (1898);  Freeman 
V.  Lynch,  8  Neb.,  192,  199  (1879)  ;  Brown  v.  Eeno  Power  Co.,  55  Fed., 
229,  233  (U.  S.  C,  C,  Nev.,  1893);  Atlantic  Trust  Co.  v.  Atlantic  City 
Laundry  Co.,  64  N.  J.  Eq.,  140,  144  (1902) ;  General  Electric  Co.  v.  Transit 
Co.,  57  N.  J.  Eq.,  460,  470  (1898)  ;  Ames  v.  Trenton  Brewing  Co.,  56  N.  J. 
Eq.,  309,  322  (1897),  aff'd  in  57  N.  J.  Eq.,  347  (1898);  Williamson  v. 
N.  J.  S.  E.  E.  Co.,  28  N.  J.  Eq.,  277,  282  (1877) ;  Crane  Iron  Works  v. 
Wilkes,  64  N.  J.  Law,  193,  194  (1899);  Palmateer  v.  Eobinson,  60  N.  J. 
Law,  433,  436  (1897);  Erdman  v.  Moore,  .58  N.  J.  Law,  445,  460  (1896); 
Pope  V.  Skinkle,  45  N.  J.  Law,  39,  41  (1883) ;  United  States  Trust  Co.  v. 
Territory,  8  N.  Mex.,  673,  688  (1896) ;  McEea  v.  Central  Bank,  66  N.  Y., 
489,  495  (1876)  ;  New  York  Security  Co.  v,  Saratoga  Light  Co.,  95  Supr. 
Ct.  (88  Hun),  569,  591  (N.  Y.,  1895) ;  Hart  v,  Sheldon,  41  Supr.  Ct.  (34 

32 


CHAP.  I.]  ANNEXATION,   ETC.  *22 

Hun),  38  (X.  Y.,  1884) ;  Eowland  v.  West,  69  Supr.  Ct.  (62  Hun),  583, 
585  (N.  Y.,  1892) ;  Schreyer  v.  Jordan,  58  N.  Y.  Supp.,  206,  208  (1899) ; 
McLaughlin  v.  Lester,  4  N.  Y.  St.  R.,  852,  853  (1886)  ;  New  York  Life 
Ins.  Co.  V.  Allison,  107  Fed.,  179,  181  (U.  S.  C.  C.  A.,  N.  Y.,  1901)  ;  Siler 
V.  Globe  Glass  Co.,  21  Ohio  Circ.  Ct.,  284,  286  (1900)  ;  Hyman  v.  Gordon, 
Ohio  Prob.,  189,  191  (1889)  ;  New  Chester  Water  Co.  v.  Holly  Mfg.  Co., 
53  Fed.,  19,  29  (U.  S.  C.  C.  A.,  Pa.,  1892),  aff'g  Holly  Mfg.  Co.  v.  New 
Chester  Water  Co.,  48  Fed.,  879,  888  (U.  S.  C.  C,  Pa.,  1891)  ;  Wick  v. 
Bredin,  189  Pa.,  83,  92  (1899)  ;  Vail  v.  Weaver,  132  Pa.,  363,  370  (1890)  ; 
Advance  Coal  Co.  v.  Miller,  4  Pa.  Dist.,  352,  355  (1895)  ;  Silliman  v.  Whit- 
mer,  11  Pa.  Super.,  243,  257  (1899),  aflf'd  196  Pa.  St.,  363,  365  (1900); 
Price  V.  Jenks,  14  Phila.,  228,  229  (1880)  ;  Daniels  v.  Detwiler,  14  Montg. 
Co.  (Pa.),  58  (1898);  McLean  v.  Palmer,  2  Luz.  Leg.  Eeg.  E.,  349,  353 
(1882);  Case  v.  L'Oeble,  84  Fed.,  582,  585  (U.  S.  C.  C,  Pa.,  1897);  Wil- 
liam Firth  Co.  v.  South  Carolina  Loan  Co.,  122  Fed.,  569  (U.  S.  C.  C.  A., 
S.  C,  1903),  aflf'g  Ee  Goldville  Mfg.  Co.,  118  Fed.,  892  (U.  S.  Dist.  Ct., 
S.  C,  1902)  ;  Evans  v.  McLucas,  15  S,  C,  67,  71  (1880)  ;  Jones  v.  Bull, 
85  Tex.,  136,  139  (1892)  ;  Hutchins  v.  Masterson,  46  Tex.,  551,  554  (1877)  ; 
Moody  v.  Aiken,  50  Tex.,  65  (1878)  ;  Orient  Ins.  Co.  v.  Parlin-Orendorff 
Co.,  14  Tex.  Civ.  App.,  512  (1886);  Menger  v.  Ward,  28  S.  W.,  821,  824 
(Tex.  Civ.  App.,  1894);  Copp  v.  Swift,  26  S.  W.,  438  (Tex.  Civ.  App., 
1894);  Deal  v.  Smart,  1  Tex.  Ct.  of  App.,  Civ.,  §  1080  (1881);  German 
Sav.  Soc.  V.  Weber,  16  Wash.,  95,  98 ;  Einzel  v.  Stumpf,  116  Wis.,  287,  290 
(1903)  ;  Mueller  v.  Chicago,  M.  &  St.  P.  Ey.  Co.,  Ill  Wis.,  300,  302  (1901)  ; 
Fuller-Warren  Co.  v,  Harter,  110  Wis.,  80,  86  (1901)  ;  Homestead  Land  Co. 
v.  Becker,  96  Wis.,  206,  210  (1897) ;  Taylor  v.  Collins,  51  Wis.,  123,  127 
(1881) ;  Monti  v.  Barnes  [1901],  1  K.  B.,  205;  Norton  v,  Dashwood  [1896], 
2  Ch.,  497,  500;  2?e  DeFalbe  [1901],  1  Ch.,  523,  541;  Fowler  v.  Fowler,  15 
N,  Brunsw.,  488,  491  (1875)  ;  Doran  v.  Willard,  14  N.  Brunsw.,  358,  360 
(1873);  Burnside  v.  Marcus,  17  U.  Can.  C.  P.,  430  (1867);  Bunnell  v. 
Tupper,  10  U.  Can.  Q.  B.,  414,  422;  Crawford  v.  Findley,  18  Gr.  Ch.,  51, 
55  (Ont.,  1871);  McDonald  v.  Weeks,  8  Gr.  Ch.,  297  (Ont.,  1860); 
Australian  Bank  v.  Colonial  Corp.,  15  N.  S.  W.  L.  R.,  464,  475  (1894) ; 
Austral  Otis  Co.  v.  Kerr,  16  Vict.,  744,  746  (1890)  ;  see,  also.  Way  v.  Way, 
42  Conn.,  52,  54  (1875);  Matzon  v.  Griffin,  78  111.,  477,  480  (1875);  Gun- 
derson  v.  Kennedy,  104  111.  App.,  117,  119  (1902);  McGorrisk  v.  Dwyer, 
78  Iowa,  279,  282  (1889) ;  Wentworth  v.  Woods  Co.,  163  Mass.,  28,  33 
(1895);  Maguire  v.  Park,  140  Mass.,  21,  27  (1885);  Allen  v.  Woodard, 
125  Mass.,  400,  402  (1878);  Curtis  v.  Leasia,  78  Mich,,  480,  483  (1889); 
Bender  v.  King,  111  Fed.,  60  (U.  S.  C.  C,  Mont.,  1901);  Erdman  v.  Moore, 
58  N.  J.  Law,  445,  460  (1896) ;  Post  v.  Miles,  7  N.  Mex.,  317,  328  (1893) ; 
Conde  v.  Lee,  55  App.  Div.,  401,  403  (N.  Y.,  1900),  aff'd  171  N.  Y.,  662 
(1902);  Hirsch  v.  Graves  Elevator  Co.,  53  N.  Y.  Supp.,  664,  665  (1898); 
Ee  Welch,  108  Fed.,  367  (U.  S.  Dist.  Ct.,  N.  Y.,  1901);  Cowart  v.  Cowart, 
71  Tenn.,  57,  61  (1879);  Mundine  v.  Pauls,  28  Tex.  Civ.  App.,  46,  51 
(1902)  ;   post,  p.  *89.] 

[* '  There  is  such  a  thing  as  common  sense,  and  it  must  be  brought  to  bear 
3  33 


•23  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[*23]  *Bnt,  although,  if  the  intention  is  that  the  articles  an- 
nexed shall  not,  by  annexation,  become  a  part  of  the  freehold,  as 
a  general  rule  they  will  not,  this  rule,  as  it  seems,  must  neces- 
[*24]  *sarily  be  subject  to  a  limitation  which  will  exclude  from 
its  intluence  cases  where  the  subject  or  mode  of  annexation  is 
such  that  the  attributes  of  personal  property  cannot  be  pred- 
icated of  the  thing  in  controversy.^ 

upon  the  question  whether  these  *  *  *  are  or  are  not  fixtures. ' '  Lind- 
ley,  L.  J.,  in  Hill  v.  Bullock  [1897],  2  Ch.,  482,  483.  Equitable  considera- 
tions have  a  strong  influence.  Shoemaker  v.  Simpson,  16  Kan.,  43,  50 
(1876).  Parts  of  a  machine  which  can  be  removed  without  injury,  and 
which  are  not  adapted  to  that  particular  mill,  may  be  treated  either  as  a 
chattel  or  as  a  fixture  as  "the  justice  of  the  case  may  require."  Hudson 
Trust  Inst.  v.  Carr-Curran  Co.,  58  N.  J.  Eq.,  59,  70  (1899).] 

In  Louisiana  the  subject  is  regulated  by  statute  (see  Rev.  C.  C.  Arts.  455, 
458,  459),  providing  (Art.  459)  that,  "things  which  the  owner  of  a  tract  of 
land  has  placed  upon  it  for  its  service  and  improvement  are  immovable  by 
destination, ' '  giving  examples ;  and  ' '  that  all  such  movables  as  the  owner 
has  attached  permanently  to  the  tenement  or  to  the  building,  are  likewise 
immovable  by  destination. ' '  Under  these  provisions  it  has  been  held  that  the 
double  iron  doors  and  iron  lining  of  a  brick  vault,  attached  with  plaster  to 
the  walls  of  a  house,  and  to  the  soil  by  a  brick  foundation,  and  not  remov- 
able without  removing  the  brick  inclosing  them,  and  to  some  extent  break- 
ing the  wall,  are  immovables  by  destination.  Folger  v.  Kenna,  24  La.  Ann., 
436  (1872).  So,  mirrors  set  in  a  wall  by  making  recesses  therein,  which 
recesses  would  be  left  in  their  rough  state  if  the  mirrors  were  removed,  the 
mirrors  being  secured  in  their  places  by  architraves  or  large  wooden  frames 
nailed  to  plugs  of  hard  wood  fastened  in  the  wall,  the  frames  of  the  mirrors 
having  grooves  in  them  corresponding  to  tongues  in  the  architraves,  and 
nails  driven  from  one  to  the  other  to  make  the  glass  more  secure,  are  at- 
tached permanently  within  Art.  459.  Mackin  v.  Smith,  5  La.  Ann.,  717 
(1850).  Under  Arts.  459  and  455  (providing  that  "lands  and  buildings, 
or  other  constructions,  whether  they  have  their  foundations  in  the  soil  or 
not,  are  immovable  by  their  nature"),  it  is  held,  that  a  dwelling  house  and 
a  gin  house  are  immovable  by  nature  and  destination,  and  can  not  be  so 
separated  from  the  plantation  by  a  transfer  as  to  embarrass  an  execution 
levied  on  the  plantation  and  improvements.  Boyle  v.  Swanson,  6  La.  Ann., 
263  (1851).  [Tools,  lathes  and  machinery,  permanently  attached  to  brick 
and  mortar,  and  necessary  to  the  operation  of  a  foundry,  are  immovable  by 
destination.    New  Orleans  Banking  Co.  v.  Leeds,  49  La.  Ann.,  123  (1897).] 

iSee  Ford  v.  Cobb,  20  N.  Y.,  344,  350  (1859),  per  Denio,  J.':  "Thus,  a 
house  or  other  building,  which  from  its  size,  or  the  materials  of  which  it  is 
constructed,  or  the  manner  in  which  it  is  fixed  to  the  land,  could  not  be 
removed  without  practically  destroying  it,  would  not,  I  conceive,  become  a 
mere  chattel  by  means  of  any  agreement  which  could  be  made  concerning 

34 


OHAP.  I.j  ANNEXATION,   ETC.  *24 

Before  proceeding  further,  it  may  be  premised  that  in  gen- 
eral, whether  an  article  is  a  fixture  or  not,  depends  in  a  great 
degree  upon  the  facts  of  each  case,^  the  question  ^  being  a  mixed 

it.  So  of  the  separate  materials  of  a  building,  and  things  fixed  into  the 
wall,  so  as  to  be  essential  to  its  support;  it  is  impossible  that  they  should 
by  any  arrangement  between  the  owners  become  chattels. ' '  See  also  Tifft  v. 
Horton,  53  N.  Y.,  377,  380  (1873) ;  Voorhees  v.  McGinnis,  48  N.  Y.,  278, 
287  (1872).  In  the  absence  of  any  express  agreement  in  such  a  case,  such  a 
state  of  facts  would  probably  afford  conclusive  evidence  of  an  intention  to 
make  a  permanent  accession  to  the  realty.  But  where  the  materials  of  such 
a  house  are  valuable  after  the  severance,  no  reason  is  perceived  why,  as  be- 
tween the  immediate  parties  thereto,  .by  an  express  agreement  prior  to 
annexation,  they  may  not  be  made  to  retain  the  character  of  personalty. 
As  to  the  removal  of  the  materials  of  trade  buildings,  see  post  Trade  Fix- 
tures, in  the  chapter  on  Landlord  and  Tenant.  See,  also,  chap.  3.  [See, 
post,  p.  *68;  also  Lyle  v.  Palmer,  42  Mich.,  314,  316  (1879)  ;  Allan  v.  Eowe, 
1  N,  Bruns.  Eq.  (Trueman),  41,  51  (1894);  Tillman  v,  DeLacy,  80  Ala., 
103,  105  (1885);  Hendy  v.  Dinkerhoff,  57  Cal.,  3,  6  (1880);  Isham  v. 
Morgan,  9  Conn.,  374,  378  (1832) ;  Western  Union  Telegraph  Co.  v.  Bur- 
lington &  S.  W.  Ky.  Co.,  11  Fed.,  1  (U.  S.  C.  C,  Iowa,  1882) ;  Home  v. 
Smith,  105  N.  C,  322,  325  (1890).  A  mortgage  of  a  steam  elevator  which 
is  a  chattel  real,  although  in  form  a  chattel  mortgage,  operates  as  a  real 
estate  mortgage  as  against  judgment  creditors  of  the  mortgagor.  Cross  v. 
Weare  Commission  Co.,   153  111.,  499    (1894).] 

2Brennan  v.  Whitakcr,  15  Ohio  St.,  451  (1864);  Steward  v.  Lombe,  1  B. 
&  B.,  506  (1820).  [British  &  Am.  Mort.  Co.  v.  Scott,  70  Ark.,  230,  232 
(1901);  Miller  v.  Waddingham,  91  Cal.,  377  (1891);  Morey  v.  Hoyt,  62 
Conn.,  542,  558  (1893)  ;  Apolo  v.  Kauo,  7  Hawaii,  755,  756  (1889)  ;  Crerar 
v.  Daniels,  209  111.,  296  (1904);  Cook  v.  Condon,  6  Kan.  App.,  574,  582 
(1897)  ;  Leonard  v.  Stickney,  131  Mass.,  541,  543  (1881)  ;  Byrnes  v.  Palmer, 
113  .Mich.,  17,  19  (1897);  Capehart  v.  Foster,  61  Minn.,  132,  135  (1895); 
Goodin  v.  Elleardsville  Hall  Ass'n,  5  Mo.  App.,  289,  294  (1878);  Loan  v. 
Gregg,  55  Mo.  App.,  581,  584  (1893);  Ambs  v.  Hill,  10  Mo.  App.,  108,  110 
(1881);  O'Brien  v.  Hanson,  9  Mo.  App.,  545,  550  (1881);  Bailey  v.  A. 
Siegel  Co.,  54  Mo.  App.,  50,  55  (1893);  Waters  v.  Rcuber,  16  Neb.,  99, 
102  (1884) ;  Feder  v.  Van  Winkle,  53  N.  J.  Eq.,  370,  372  (1895)  ;  American 
Brick  Co.  v.  Drinkhouse,  59  N.  J.  L.,  462,  464  (1896)  ;  Mutual  L.  Ins,  Co.  v. 
Nat.  Bank  of  Newburgh,  25  Supr.  Ct.  (IH-Hun),  371,  372  (N.  Y.,  1879)  ;  Ben- 
edict v.  Marsh,  127  Pa.  St.,  309  (1889);  Harmony  Bldg.  Ass'n  v.  Berger, 
99  Pa.  St.,  320,  324  (1882);  Kisterbock  v.  Todd,  16  Wkly.  Notes  Cas.,  47 
(Phila.  C.  P.,  1885)  ;  Gulf,  C.  &  S.  R'y  Co.  v.  Dunman,  35  S.  W.,  947.  948 
(Tex.  Civ.  App.,  1896)  ;  M()rf)tock  Ins.  Co,  v.  Rodcfcr,  92  Va.,  747,  753 
(1896);  lie  Ainslic  (1885),  30  Ch,  D.,  485,  487;  Pronguey  v.  Gurney,  36 
IJ.  Can,  Q.  B,,  53,  80  (1874)  ;  Reynolds  v.  Dechman,  2  Nova  S.  L.  R.,  459^ 
466  (1881)  ;  Laidlaw  v.  Taylor,  2  Nova  S.  L.  R.,  155,  161  (1881)  ;  see,  also, 
Ball  V,  Banjamin,  73  111.,  39,  41    (1874)  ;   Scudder  v.  Anderson,  54  Mich., 

35 


*25  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[*25]  *oiie  of  law  and  fact;  but  where  there  is  no  controversy 
about  the  facts,  the  question  is  one  of  law.^ 

With  respect  to  the  first  branch  of  the  rule  above  stated,  it 

122,  125  (1884) ;  Keilly  v.  Hudson,  62  Mo.,  383,  387  (1876) ;  Sosman  v. 
Conlon,  57  Mo.  App.,  25  (1894)  ;  Barber  v.  Roth,  19  Pa.  Co.,  366  (1896) ; 
■post,  p.  *41,  ut.] 

3  Trustees  v.  Grubb,  19  Leg.  Int.,  157;  5  Phila.  R.,  41  (1862);  Grand 
Lodge  V.  Knox,  27  Mo.,  315  (1858)  ;  Fortman  v.  Goepper,  14  Ohio  St.,  562 
(1863)  ;  Campbell  v.  O'Neill,  64  Penn.  St.,  290  (1870)  ;  Steward  v.  Lombe, 
1  B.  &  B.,  506  (1820).  [Nelson  v.  Howison,  122  Ala.,  573,  580  (1898); 
Gresham  v.  Taylor,  51  Ala.,  505,  507  (1874)  ;  Fechet  v.  Drake,  2  Ariz., 
239  (1887);  Ott  v.  Specht,  8  Houston  (Del.),  61,  70  (1887);  Smith  v. 
Odom,  63  Ga.,  499,  503  (1879)  ;  McParlane  v.  Foley,  27  Ind.  App.,  484, 
486  (1901);  Howell  v.  Barnard,  32  111.  App.,  120,  122  (1889);  Allen  v. 
Mooney,  130  Mass.,  155,  156  (1881);  Wentworth  v.  Woods  Co.,  163  Mass., 
28,  33  (1895)  ;  Thomas  v.  Wagner,  92  N.  W.,  106  (Mich.,  1902)  ;  Ambs  v. 
Hill,  13  Mo.  App.,  585;  Insurance  Co.  of  No.  Am.  v.  Buckstaff,  92  N.  W., 
755,  756  (Neb.,  1902)  ;  Graton  &  Knight  Co.  v.  Woodworth-Mason  Co.,  69 
N.  H.,  177,  178  (1897);  Pope  v.  Skinkle,  45  N.  J.  Law,  39,  40  (1883); 
VanKeuren  v.  Central  R.  R.  of  N.  J.,  38  N.  J.  Law,  165,  166  (1875); 
Scobell  V.  Block,  89  Supr.  Ct.  (82  Hun),  223,  224  (N.  Y.,  1894)  ;  Bridges 
V.  Thomas,  8  Okla.,  620,  623  (1899);  Alberson  v.  Elk  Creek  Min.  Co.,  39 
Ore.,  552,  559  (1901);  Matthiesen  v.  Arata,  32  Ore.,  342,  346  (1897); 
Honeyman  v.  Thomas,  25  Ore.,  539,  543  (1894)  ;  National  Bank  v.  North, 
160  Pa.  St.,  303  (1894);  Silliman  v.  Whitmer,  11  Pa.  Super.,  243,  266 
(1899),  aff'd  196  Pa.  St.,  363,  365  (1900);  Padgett  v.  Cleveland,  33  S. 
C,  339,  345  (1889);  Gulf,  &c.,  R'y  Co.  v.  Dunman,  85  Tex.,  176,  182 
(1892);  Missouri  Pac.  R'y  Co.  v.  Cullers,  81  Tex.,  382,  390  (1891);  Stell 
V.  Paschal,  41  Tex.,  640,  645  (1874)  ;  Mundine  v.  Pauls,  28  Tex.  Civ.  App., 
46,  50  (1902);  Dunman  v.  Gulf,  &c.,  R'y  Co.,  26  S.  W.,  304,  305  (Tex. 
Civ,  App.,  1894)  ;  Tunis  Lumber  Co.  v.  Denis  Lumber  Co.,  97  Va.,  682,  689 
(1899);  Philadelphia  Mort.  Co.  v.  Miller,  20  Wash.,  607,  610  (1899); 
German  Sav.  Soc.  v.  Weber,  16  Wash.,  95,  98  (1896)  ;  Lipsky  v.  Borgman, 
52  Wis.,  256,  258  (1881);  Monti  v.  Barnes  [1901],  1  K.  B.,  205,  207; 
Masefield  v.  Rotana,  10  N.  Z.,  169,  173  (1891) ;  see,  also,  Brooks  v.  Prescott, 
114  Mass.,  392,  396  (1874)  ;  and,  post,  p.  *94.] 

iFullam  V.  Stearns,  30  Vt.,  452  (1857);  Steward  v.  Lombe,  1  B.  &  B., 
506  (1820).  See,  also,  Seeger  v.  Pettit,  77  Penn.  St.,  437  (1875).  [Royce 
V.  Latshaw,  15  Colo.  App.,  420  (1900)  ;  Myrick  v.  Bill,  3  Dak.,  284,  291 
(1883);  Commonwealth  v.  Bruce,  79  Ky.,  560,  561  (1881);. Hill  v.  Rosen- 
feld,  10  Ky.  Law  R.,  496  (Circ.  Ct.,  1888)  ;  Hopewell  Mills  v.  Taunton  Bank, 
150  Mass.,  519,  522  (1890)  ;  Jenks  v.  Colwell,  66  Mich.,  420,  430  (1887)  ; 
Harris  v.  Hackley,  127  Mich.,  46,  49  (1901)  ;  Bartlett  v.  Haviland,  92  Mich., 
552,  555  (1892)  ;  St.  Louis  Radiator  Co.  v.  Carroll,  72  Mo.  App.,  315,  318 
(1897)  ;  John  O'Brien  Boiler  Co.  v.  Haydock,  59  Mo.  App.,  653,  660  (1894) ; 
Ward  V.  Kilpatrick,  85  N.  Y.,  413,  417  (1881);  Bradley  v.  Ritchie,  12  Pa. 

36 


CHAP,  I.]  ANNEXATION,   ETC.  *26 

is  believed  that  the  definition  of  the  word  "annexation,"  by 
Mr.  Ferard  (page  2),  as  requiring  that  the  article  in  question 
should  be  let  into  or  united  to  the  land,  or  to  some  substance 
previously  connected  with  the  land,  or  that  the  soil  shall  have 
been  displaced  for  the  purpose  of  receiving  the  article,  or  that 
the  chattel  should  be  cemented  or  otherwise  fastened  to  some 
fabric  previously  attached  to  the  ground,  is  entirely  too  narrow. 
In  many  of  the  cases,  and  especially  in  eases  between  landlord 
and  tenant,  the  fact  that  the  article  in  question  is  simply  laid 
upon  the  land  and  brought  into  contact  with  it  without  any 
more  intimate  connection  with  the  realty,  considered  in  connec- 
tion with  the  relation  existing  between  the  parties,  furnishes 
satisfactory  and  conclusive  evidence  of  an  intention  on  the  part 
of  the  party  erecting  the  structure  not  to  make  it  a  permanent 
accession  to  the  freehold,  or  even  that  it  should  retain  entire  its 
character  as  a  chattel.  But  in  other  cases  ^  *the  relation  [*26] 
of  the  parties  and  the  policy  of  the  law  in  relation  thereto,  the 

Dist.,  658,  661  (1903);  Harris  v.  Kelly,  13  Atl.,  523,  527  (Pa.,  1888); 
Jenkins  v.  McCurdy,  48  Wis.,  628,  629  (1879);  Burnside  v.  Marcus,  17 
Up.  Can.  C.  P.,  430,  441  (1867) ;  Bunnell  v.  Tupper,  10  Up.  Can.  Q,  B., 
414,  417;  see,  also,  Moore  v.  Moran,  64  Neb.,  84,  87  (1902);  New  York 
Life  Ins.  Co.  v.  Allison,  107  Fed.,  179,  186  (U.  S.  C.  C.  A.,  N.  Y.,  1901). 
See,  however,  Brownell  v.  Fuller,  60  Nebr.,  558,  566   (1900).] 

[Where  the  evidence  is  excedingly  meagre  but  it  appears  that  the  mas- 
ter has  visited  the  factory,  and  has  seen  each  machine  and  the  mode  of 
its  attachment,  there  is  a  strong  presumption  in  favor  of  his  findings;  and 
they  must  be  assumed  to  be  correct  unless  the  evidence  shows  that  they 
are  wrong,     Southbridge  Bank  v.   Mason,   147   Mass.,  500    (1888).] 

[Where  a  statute  provides  that,  in  event  of  total  loss  of  real  property, 
the  amount  named  in  the  insurance  policy  covering  same  shall  be  conclusive 
as  to  the  true  value  thereof,  it  is  not  competent  for  insurance  companies 
to  avoid  their  liability  by  agreement  with  the  owner  to  denominate  it 
personal  property,  when,  by  law,  it  would  be  denominated  real  property. 
Havens  v,  Germania  Ins.  Co.,  123  Mo.,  403,  421    (1S94).] 

[Where  the  burden  of  proof  is  upon  the  party  claiming  that  an  article  is 
a  chattel,  and  he  oifers  no  evidence,  there  is  no  question  for  the  jury. 
Reynolds  v.  Ashby  [1903],  1   K.  B.,  87.] 

2  This  subject  is  so  well  considered  in  Sncdeker  v.  Warring,  12  N.  Y,,  170 
(1854),  as  to  warrant  the  presentation  of  the  material  portions  of  the  case 
at  the  end  of  this  note. 

Sncdeker  v.  Warring  was  approved  in  Wadlcigh  v.  Janvrin,  41  N.  H., 
503,  517  (I860);  Strifkland  v.  Parker,  iJ4  Me.,  263,  266  (1866).  See,  also, 
Ogden  V.  Stock,  34  111.,  522  (1864) ;  Bainway  v.  Cobb,  99  Mass.,  457  (1868) ; 

37 


•26  THE  LAW  OF  FIXTURES.  [  CHAP.  I. 

Bogers  v.  Crow,  40  Mo,,  91  (1S67);  D'Eyncourt  v.  Gregory,  L.  R.,  3  Eq., 
382,  396  (ISGG). 

Sec,  however,  Grady  Fixt.    (id  Ed.),   1-14. 

Kails  laid  iuto  a  fence  upon  land  are  a  part  of  the  freehold,  even  though 
not  otherwise  attached  to  the  land  than  by  their  weight  alone.  Boon  v.  Orr, 
4  G.  Greene,  304  (1854);  Smith  v.  Carroll,  4  G.  Greene,  146  (1853);  Sey- 
mour V.  Watson,  5  Blackf.,  555  (1841);  Burleson  v.  Tecple,  2  G.  Greene, 
542  (1850)  ;  Mitchell  v.  Billingsley,  17  Ala.,  391  (1850).  [Bagley  v.  Colum- 
bus S,  R'y  Co.,  98  Ga.,  626;  Emrieh  v.  Ireland,  55  Miss.,  390,  402  (1877); 
Hannibal  &  St.  Jo.  R.  R.  Co.  v.  Crawford,  68  Mo.,  80,  82  (1878)  ;  Kimball 
V.  Adams,  52  Wis.,  554,  556   (1881).] 

[Likewise,  a  church  organ.  Chapman  v.  Union  Mut.  L.  Ins.  Co.,  4  III. 
App.,.29,  35    (1879).] 

[Likewise  an  iron  table  weighing  thirty-three  tons  resting  upon  a  brick 
and  stone  foundation  in  a  glass  factory.  Smith  Paper  Co.  v.  Servin,  130 
Mass.,  511,  512  (1881)  ;  crates,  capping  machines  and  work  tables  in  a 
canning  factory.  Dudley  v.  Hurst,  67  Md.,  44,  51  (1887)  ;  a  tank  of  the 
capacity  of  two  hundred  and  fifty  barrels  upon  a  foundation  of  earth  and 
lumber.  Parker  Com.  v.  Reddick,  18  Ind.  App.,  616,  619  (1897);  a  large 
cask  in  a  brewery.  Meyer  v.  Orynski,  25  S.  W.,  655,  657  (Tex.  Civ.  App., 
1894)  ;  "dog  grates"  of  considerable  weight  replacing  fixed  grates.  Monti 
V.  Barnes  [1901],  1  K.  B.,  205;  a  six  horse  power  steam  engine  and  boiler 
resting  upon  wheels  upon  the  ground.  ' '  By  the  law  of  gravitation  it 
becomes  affixed  to  the  spot  where  it  was  placed. ' '  Hart  v.  Sheldon,  41  Supr. 
Ct.  (34  Hun),  38,  44  (N.  Y.,  1884);  Brand  v.  Brand  (1878),  5  Sess.  Cas., 
4th  Ser.,  607.] 

[A  house,  even  though  attached  to  land  not  otherwise  than  by  its  own 
weight,  is  necessarily  looked  at  from  a  somewhat  different  point  of  view 
as  regards  the  question  of  annexation  to  the  land  than  a  piece  of  machinery 
or  other  weighty  article,  which  is  itself  constructed  as  a  mere  distinct  chat- 
tel.    Miles  V.  Ankatell,  25  Ont.  App.,  458,  460    (1898).] 

[In  regard  to  annexation  by  weight  alone,  see,  also,  Leonard  v.  Stickney, 
131  Mass.,  541,  543   (1881).] 

So  much  of  the  case  of  Snedeker  v.  Warring  as  relates  to  the  subject 
under  consideration,  is  as  follows:  Appeal  from  the  Supreme  Court.  James 
Thom,  the  sculptor,  owning  a  farm  in  Rockland  county,  in  the  year  1842 
mortgaged  it  to  Crum,  and  subsequently  erected  thereupon  a  dwelling  house, 
built  in  the  Gothic  style,  of  red  stone,  and  a  sun-dial;  and  placed  upon  a 
base  in  the  lawn  in  front  of  the  house,  a  colossal  statue  of  Washington.  In 
1849,  the  farm  and  its  appurtenances  were  sold  to  defendant,  upon  a  fore- 
closure of  said  mortgage,  who  took  possession  of  the  premises,  the  dial  and 
statue  still  remaining  where  originally  erected.  After  the  erection  of  the 
dial  and  statue,  Thom  made  a  second  mortgage  upon  the  farm,  which  mort- 
gage came  to  the  defendant  by  assignment  at  the  time  of  his  purchase  of 
the  premises,  at  the  sale  under  the  first  mortgage.  The  sheriff  of  Rockland 
county,  in  1847,  sold  the  dial  and  statue  to  the  plaintiff  as  personalty,  upon 
an  execution  issued  on  a  judgment  rendered  against  Thom,  and  the  defend- 

38 


CHAP,  I,]  ANNEXATION,   ETC.  *26 

ant  having  refused  the  plaintiff  permission  to  remove  the  dial  and  statue,  he 
brought  this  action  to  recover  their  value.  On  the  trial  the  above  facts 
were  proved,  and  also  that  the  dial  was  three  or  four  feet  in  height,  sup- 
ported upon  a  block  of  red  stone  in  the  form  of  a  pedestal  at  the  bottom, 
and  square  at  the  top,  the  intervening  part  being  shaped  like  a  column,  and 
eighteen  inches  in  diameter  in  the  middle,  and  eight  at  each  end.  This 
pedestal  rested  on  a  flag  covering  a  well,  from  which  water  was  conducted  by 
under-ground  pipes  to  the  house.  The  block  of  stone  supporting  the  dial  was 
kept  in  position  on  the  flag  by  its  weight  alone,  which  was  about  two  hun- 
dred pounds. 

It  also  appeared  that  the  statue  and  its  pedestal,  weighing  between  three 
and  four  tons,  were  made  from  a  single  block  of  red  stone,  of  the  same  color 
as  the  block  supporting  the  dial,  and  the  stone  composing  the  house.  In 
the  centre  of  a  mound,  raised  about  three  feet  above  the  natural  surface  of 
the  ground,  a  foundation  for  the  base  of  the  statue  was  built,  composed  of 
rough  stone  laid  up  without  mortar;  and  upon  this  foundation,  the  top  of 
which  was  below  the  surface  of  the  mound,  a  base  was  built  for  the  statue 
composed  of  square  blocks  of  stone,  of  similar  color  to  that  composing  the 
statue  and  its  pedestal.  This  base,  which  rose  about  three  feet  above  the 
surface  of  the  mound,  was  of  a  square  form,  but  not  laid  up  with  mortar  or 
cement,  or  fastened  in  any  way  (except  that  the  joints  were  pointed  with 
cement)  ;  and  corresponded  with  the  pedestal  of  the  statue  supported  by  it. 
The  whole  height  of  the  statue  and  base  was  about  twelve  feet.  The  statue 
was  not  in  any  way  secured  to  the  base,  which  was  made  expressly  for  it, 
excepting  by  its  weight,  and  had  never  been  removed  from  its  position  since 
it  was  placed  there  some  six  or  seven  years  before  the  trial,  nor  had  it  caused 
the  base  or  foundation  to  settle  or  give  way.  Mr.  Thom  testified  in  behalf 
of  the  plaintiff,  that  he  intended  to  sell  the  statue,  and  placed  it  upon  the 
base  to  remain  there  only  till  ho  could  sell  it ;  which  last  evidence  was 
objected  to  by  defendant,  and  exception  taken  to  the  ruling  admitting  it. 

' '  Parker,  J.  The  facts  in  this  case  are  undisputed,  and  it  is  a  question 
of  law  whether  the  statue  and  sun-dial  were  real  or  personal  property.  The 
plaintiffs  claim  they  are  personal  property,  having  purchased  them  as  suoh 
under  an  execution  against  Tliom.  The  defendant  claims  they  are  real 
property,  having  bought  the  farm  on  which  they  were  erected,  at  a  fore- 
closure sale  under  a  mortgage,  executed  by  Thom  before  the  erection  of 
the  statue  and  sun-dial,  and  also  as  mortgagee  in  possession  of  another 
mortgage,  executed  by  Thom  after  their  erection.     *     »     »     » 

"No  case  has  been  found  in  cither  the  English  or  American  courts,  decid- 
ing in  what  cases  statuary  placed  in  a  house  or  in  grounds  shall  be  deemed 
real,  and  in  what  cases  personal  property.  This  question  must  therefore  bo 
determined  upon  principle.  All  will  agree  that  statuary  exposed  for  sale  in 
a  workshop,  or  wherever  it  may  be  before  it  shall  be  permanently  placed,  is 
personal  property;  nor  will  it  bo  controverted  that  where  statuary  is  placed 
upon  a  building,  or  so  connected  with  it,  as  to  bo  considered  part  of  it,  it 
will  bo  doomed  real  property,  and  pass  with  a  deed  of  the  land.  But  the 
doubt  in  this  case  arises  from  the  peculiar  position  and  character,  of  this 

39 


*26  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

statue,  it  being  placed  iu  a  court  yard  before  the  house,  on  a  base  erected  on 
an  artificial  mound  raised  for  the  purpose  of  supporting  it.  The  statue  was 
not  fastened  to  the  base  by  either  clamps  or  cement,  but  it  rested  as  firmly 
on  it  by  its  own  weight,  which  was  three  or  four  tons,  as  if  otherwise  affixed 
to  it.  The  base  was  of  masonry,  the  seams  being  pointed  with  cement, 
though  the  stones  were  not  laid  in  either  cement  or  mortar;  and  the  mound 
was  an  artificial  and  permanent  erection,  raised  some  two  or  three  feet  above 
the  surrounding  land,  with  a  substantial  stone  foundation. 

* '  If  the  statue  had  been  actually  affixed  to  the  base  by  cement  or  clamps, 
or  in  any  other  manner,  it  would  be  conceded  to  be  a  fixture,  and  to  belong 
to  the  realty.  But  as  it  was,  it  could  have  been  removed  without  fracture 
to  the  base  on  which  it  rested.  But  is  that  circumstance  controlling?  A 
building  of  wood,  weighing  even  less  than  this  statue,  but  resting  on  a  sub- 
stantial foundation  of  masonry,  would  have  belonged  to  the  realty.  A  thing 
may  be  as  firmly  affixed  to  the  land  by  gravitation  as  by  clamps  or  cement. 
Its  character  may  depend  much  upon  the  object  of  its  erection.  Its  destina- 
tion, the  intention  of  the  person  making  the  erection,  often  exercise  a  con- 
trolling influence,  and  its  connection  with  the  land  is  looked  at  principally 
for  the  purpose  of  ascertaining  whether  that  intent  was  that  the  thing  in 
question  should  retain  its  original  chattel  character,  or  whether  it  was  de- 
signed to  make  it  a  permanent  accession  to  the  lands. 

"By  the  civil  law,  columns,  figures  and  statues,  used  to  spout  water  at 
fountains,  were  regarded  as  immovable,  or  real  (Pandects,  lib.  19,  tit.  1, 
§17,  vol.  7,  by  Pothier,  107),  though  it  was  inferred  that  statues  resting  on 
a  base  of  masonry  Avere  not  immovable,  because  they  were  there,  not  as 
a  part  of  the  construction,  but  as  ornaments.  (Corp.  Juris.  Civ.,  by  Krei- 
gel,  lib.  19,  tit.  1,  §17;  Poth.,  Pand.,  109;  Burrill's  Law  Die,  "Aflaxus"). 
But  Labeo  held  the  rule  to  be  "  ea  quae  perpetui  usus  causa  in  aedificiis  sunt 
aedificii  esse;  quae  vero  ad  praesens,  non  esse  aedificii;"  thus  making  the 
kind  of  property  depend  upon  the  question  whether  it  was  designed  by  the 
proprietor  to  be  permanent  or  temporary;  or,  as  it  was  generally  called  by 
civilians,  "its  destination."  (Corp.  Jur.  Civ.,  by  Kreigel,  lib.  19,  tit.  1, 
§17.) 

"And  Pothier  says  that  when,  in  the  construction  of  a  large  vestibule  or 
hall,  niches  are  made,  the  statues  attached  ("attachees")  to  those  niches, 
make  part  of  the  house,  for  they  are  placed  there  ad  integrandam  domum. 
They  serve  to  complete  that  part  of  the  house.  Indeed,  the  niches  being 
made  only  to  receive  the  statues,  there  will  fail  to  be  any  thing  in  the  ves- 
tibule without  the  statues;  and  he  says,  it  is  of  such  statues  that  we  must 
understand  what  Papinianus  says:  " Sigilla  et  statuae  affixae,  instrumento 
domus  non  continentur,  sed  domus  portio  sunt."  (Pothier  de  Communaute, 
§56.) 

"By  the  French  law,  statues  placed  in  a  niche  made  expressly  to  receive 
them,  though  they  could  be  removed  without  fracture  or  deterioration,  are 
immovable,  or  part  of  the  realty.  (Code  Nap.,  §  .'325.)  But  statues  stand- 
ing on  pedestals  in  houses,  court-yards  and  gardens,  retain  their  character 
of  "movable"  or  personal.     (3  Touillier,  Droit  Civil  de  France,  12.)     This 

40 


CHAP.  I,]  ANNEXATION,   ETC.  *26 

has  reference  to  statues  only  which  do  not  stand  on  a  substantial  and  per- 
manent base,  or  separate  pedestal  made  expressly  for  them.  For  when  a 
statue  is  placed  on  a  pedestal  or  base  of  masonry  constructed  expressly  for 
it,  it  is  governed  by  the  same  rule  as  when  placed  in  a  niche  made  expressly 
to  receive  it,  and  is  immovable  (2  Eepertoire  Generale,  Journal  du  Palais,  by 
Ledru  Eollin,  518,  §  139),  The  statue  in  such  case  is  regarded  as  making 
part  of  the  same  thing  with  the  permanent  base  upon  which  it  rests.  The 
reasons  for  the  French  law  upon  this  subject  are  stated  by  the  same  author 
in  the  same  work,  page  517,  §  129,  where  the  rule  is  laid  down  with  regard 
to  such  ornaments  as  mirrors,  pictures  and  statues,  that  the  law  will  pre- 
sume the  proprietor  intended  them  as  immovable  when  they  cannot  be  taken 
away  without  fracture  or  deterioration,  or  leaving  a  gap  or  vacancy,  A 
statue  is  regarded  as  integral  with  the  permanent  base  on  which  it  rests,  and 
which  was  erected  expressly  for  it,  when  the  removal  of  the  statue  will  offend 
the  eye  by  presenting  before  it  a  distasteful  gap  ("vide  cJwquant"),  a 
foundation  and  base  no  longer  appropriate  or  useful,  (Id.,  §  139.)  Things 
immovable  by  destination  are  said  to  be  those  objects  movable  in  their 
nature,  which,  without  being  actually  held  to  the  ground,  are  destined  to 
remain  there  perpetually  attached  for  use,  improvement  or  ornament,  (2 
Ledru  Eollin,  Eepertoire  Generale,  514,  §  30.) 

* '  I  think  the  French  law,  as  applicable  to  statuary,  is  in  accordance  with 
reason  and  justice.  It  effectuates  the  intention  of  the  proprietor.  No  evi- 
dence could  be  received  more  satisfactory  of  the  intent  of  the  proprietor  to 
make  a  statue  a  part  of  his  realty,  than  the  fact  of  his  having  prepared  a 
niche  or  erected  a  permanent  base  of  masonry  expressly  to  receive  it ;  and  to 
remove  a  statue  from  its  place  under  such  circumstances,  would  produce  as 
great  an  injury,  and  do  as  much  violence  to  the  freehold,  by  leaving  an 
unseemly  and  uncovered  base,  as  it  would  have  done  if  torn  rudely  from  a 
fastening  by  which  it  had  been  connected  with  the  land.  The  mound  and 
base  in  this  case,  though  designed  in  connection  with  the  statue  as  an  orna- 
ment to  the  grounds,  would,  when  deprived  of  the  statue,  become  a  most 
objectionable  deformity. 

"There  are  circumstances  in  this  case,  not  necessary  under  the  French 
law,  to  indicate  the  intention  to  make  the  statue  a  permanent  erection,  but 
greatly  strengthening  the  presumption  of  such  intent.  The  base  was  made 
of  red  sand  stone,  the  same  material  as  the  statue,  giving  to  both  the  statue 
and  base  the  appearance  of  being  but  a  single  block,  and  both  were  also 
of  the  same  material  as  the  house.  The  statue  was  thus  peculiarly  fitted  as 
an  ornanxint  for  the  grounds  in  front  of  that  particular  house.  It  was  also 
of  colossal  size,  and  was  not  adapted  to  any  other  destination  than  a  perma- 
nent ornament  to  the  realty.  The  design  and  location  of  the  statue  were 
in  every  respect  appropriate,  in  good  taste,  and  in  harmony  with  the  sur- 
rounding objects  and  circumstances. 

"I  lay  entirely  out  of  view  in  this  case  the  fact  that  Thorn  testified  that 
ho  intended  to  sell  the  statue  when  an  opportunity  should  offer.  His  secret 
intention  in  that  respect  can  have  no  legitimate  bearing  on  the  question, 
lie  clearly  intended  to  make  use  of  the  statue  to  ornament  his  grounds, 

41 


•26  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

when  he  erected  for  it  a  permanent  mound  and  base;  and  a  purchaser  had 
a  right  so  to  iufer,  and  to  be  govoriiod  by  the  manifest  and  unmistakable 
evidences  of  intention.  It  was  decided  by  the  court  of  cassation  in  France, 
in  Hornello  v.  Enregistr.  (2  Ledru  EoUin,  Journal  du  Palais,  Eepertoire, 
etc.,  214),  that  the  destination  which  gives  to  movable  objects  an  immovable 
character,  results  from  facts  and  circumstances  determined  by  the  law  itself, 
and  could  neither  be  established  nor  taken  away  by  the  simple  declarations 
of  the  proprietor,  Avhether  oral  or  written.  There  is  as  much  reason  in  this 
rule  as  in  that  of  the  common  law,  which  deems  every  person  to  have 
intended  the  natural  consequences  of  his  own  acts. 

"There  is  no  good  reason  for  calling  the  statue  personal  because  it  was 
erected  for  ornament  only,  if  it  was  clearly  designed  to  be  permanent.  If 
Thom  had  erected  a  bower  or  summer  house  of  wicker  work,  and  had  placed 
it  on  a  permanent  foundation  in  an  appropriate  place  in  front  of  his  house, 
no  one  would  doubt  it  belonged  to  the  realty;  and  I  think  this  statue  as 
clearly  belongs  to  the  realty  as  a  statue  would,  placed  on  the  house,  or  as  one 
of  two  statues  placed  on  the  gate  posts  at  the  entrance  to  the  grounds. 

"An  ornamental  monument  in  a  cemetery  is  none  the  less  real  property 
because  it  is  attached  by  its  own  weight  alone  to  the  foundation  designed  to 
give  it  perpetual   support. 

"It  is  said  the  statues  and  sphinxes  of  colossal  size  which  adorn  the 
avenue  leading  to  the  temple  of  Karnak,  at  Thebes,  are  secured  on  their 
solid  foundations  only  by  their  own  weight.  Yet  that  has  been  found  suffi- 
cient to  preserve  many  of  them  undisturbed  for  four  thousand  years  (Tay- 
lor's Africa,  113  et  seq.)  ;  and  if  a  traveler  should  purchase  from  Mehemet 
Ali  the  land  on  which  these  interesting  ruins  rest,  it  would  seem  quite  absurd 
to  hold  that  the  deed  did  not  cover  the  statues  still  standing,  and  to  claim 
that  they  were  the  still  unadministered  personal  assets  of  the  Ptolemies  after 
an  annexation  of  such  long  duration.  No  legal  distinction  can  be  made 
between  the  sphinxes  of  Thebes  and  the  statue  of  Thom.  Both  were  erected 
for  ornament,  and  the  latter  was  as  colossal  in  size  and  as  firmly  annexed 
to  the  land  as  the  former,  and  by  the  same  means. 

' '  I  apprehend  the  question,  whether  the  pyramids  of  Egypt  or  Cleopatra 's 
Needle  are  real  or  personal  property,  does  not  depend  on  the  result  of  an 
inquiry  by  the  antiquarian  whether  they  were  originally  made  to  adhere  to 
their  foundations  with  wafers,  or  sealing  wax,  or  a  handful  of  cement.  It 
seems  to  me  puerile  to  make  the  title  to  depend  upon  the  use  of  such,  or  of 
any  other,  adhesive  substances,  when  the  great  weight  of  the  erection  is  a 
much  stronger  guaranty  of  permanence. 

"The  sun-dial  stands  on  a  somewhat  different  footing.  It  was  made  for 
use  as  well  as  for  ornament,  and  could  not  be  useful  except  when  firmly 
placed  in  the  open  air  and  in  the  light  of  the  sun.  Though  it  does  not 
appear  that  the  stone  on  which  it  is  placed  was  made  expressly  for  it,  it 
was  appropriately  located  on  a  solid  and  durable  foundation.  There  is 
good  reason  to  believe  it  was  designed  to  be  a  permanent  fixture,  because 
the  material  of  which  it  was  made  was  the  same  as  that  of  the  house  and 
the  statue,  and  because  it  was  in  every  respect  adapted  to  the  place. 

42 


CHAP.  I,]  ANNEXATION,   ETC.  '*27 

massiveness  and  permanent  nature  of  the  structure,  *ap-  [*27] 
propriation  or  adaptation  to  the  use  or  purpose  of  that  part  of 
the  realty  with  which  it  connected,  and  other  attendant  circum- 
*stances  furnish  equally  conclusive  evidence  of  an  inten-  [*28] 
tion  to  make  the  erection  a  permanent  accession  to  the  freehold, 
not* withstanding  it  may  not  be  cemented  or  otherwise  [*29] 
fastened  to  the  realty  than  by  its  weight  alone,  and  under  such 
circumstances  the  erection  ought  to  be  considered  parcel  of  the 
realty,  *This  distinction,  and  the  rule  stated  above,  it  is  [*30] 
believed  will  reconcile  many  of  the  cases  otherwise  apparently 
irreconcilable,  or  will  at  least  place  the  subject  upon  a  more 
rational  basis. 

The  subject  is  well  considered  by  the  Court  of  Exchequer 
Chamber,  in  Holland  v.  Hodgson,^  Blackburn,  J.,  delivering  the 
opinion  of  the  court.  "The  present  case  is,  therefore,  really, 
though  not  in  form,  an  appeal  against  the  decision  of  the  Court 
of  Queen's  Bench  in  Longbottom  v.  Berry,^  and  was  so  argued. 
There  is  no  doubt  that  the  general  maxim  of  law  is,  that  what 
is  annexed  to  the  land  becomes  part  of  the  land;  but  it  is  very 
difficult,  if  not  impossible,  to  say  with  precision  what  consti- 
*tutes  an  annexation  sufficient  for  this  purpose.  It  is  a  [*31] 
question  which  must  depend  on  the  circumstances  of  each  ease, 
and  mainly  on  two  circumstances,  as  indicating  the  intention, 
viz.,  the  degree  of  annexation  and  the  object  of  the  annexation. 
"When  the  article  in  question  is  no  further  attached  to  the  land 
than  by  its  own  weight,  it  is  generally  to  be  considered  a  mere 
chattel ;  see  Wiltshear  v.  Cottrell,-^  and  the  cases  there  cited. 
But  even  in  such  a  case,  if  the  intention  is  apparent  to  make 
the  articles  part  of  the  land,  they  do  become  part  of  the  land; 

"My  conclusion  is,  that  the  facts  in  the  case  called  on  the  jmlgo  of  the 
circuit  to  decide,  as  a  matter  of  law,  that  the  property  was  real,  and  to 
nonsuit  tho  plaintiff;  and  if  T  am  right  in  this  conclusion,  the  judgment  of 
the  Supremo  Court  should  be  reversed. 

"Gardiner,  C.  J.,  and  Euggles,  Selden,  Allen  and  Edwards,  Js., 
concurred  in  the  conclusions  of  tho  foregoing  opinions. 

".ToiiNSON,  .J.  (Dissenting)."     »     «     •     » 

1  L.  R.,  7  C.  P.,  328,  3.34  (1872).     [See  Chidlcy  v.  Churchwardens  of  West 
Ham.    (1874),   32  Law  T.  R.,  486.] 
2L.  R.,  5  Q.  B.,   123    (1869). 

8  1  E.  &  B.,  674  (1853)  ;  s.  C,  22  L.  .T.  Q.  B.,  177. 

43 


*32  TUE  LAW  OF  FIXTURES.  [CHAP.  I. 

see  D'Eyneourt  v.  Gregory.'*  Thus  blocks  of  stone  placed  one 
on  the  top  of  another  without  any  mortar  or  cement,  for  the 
purpose  of  forming:  a  dry  stone  wall,  would  become  part  of 
the  laud,  thoutih  the  same  stones^  if  deposited  in  a  builder's 
yard,  and  for  convenience  sake  stacked  on  the  top  of  each 
other  in  the  form  of  a  wall,  would  remain  chattels.  On  the 
other  hand,  an  article  may  be  very  firmly  fixed  in  the  land,  and 
yet  the  circumstances  may  be  such  as  to  shew  that  it  was  never 
intended  to  be  part  of  the  land,  and  then  it  does  not  become 
part  of  the  land.  The  anchor  of  a  large  ship  must  be  very 
firmly  fixed  in  the  ground  in  order  to  bear  the  strain  of  the 
cable,  yet  no  one  could  suppose  that  it  became  part  of  the  land, 
even  though  it  should  chance  that  the  ship-owner  was  also  the 
owner  of  the  fee  of  the  spot  where  the  anchor  was  dropped.'' 
An  anchor  similarly  fixed  in  the  soil  for  the  purpose  of  bearing 
[*32]  *the  strain  of  the  chain  of  a  suspension  bridge,  would  be 
part  of  the  land.  Perhaps  the  true  rule  is,  that  articles  not 
otherwise  attached  to  the  land  than  by  their  own  weight,  are  not 
to  be  considered  as  part  of  the  land,  unless  the  circumstances 
are  such  as  to  shew  that  they  were  intended  to  be  part  of  the 

4L.  E.,  3  Eq.,  382    (1866). 

5  A  floating  dock  floated  to  within  12  feet  of  a  pier,  and  there  so  fastened 
to  the  pier  that  its  only  motion  is  to  rise  and  fall  with  the  tide,  is  not  a  fix- 
ture within  a  statute  providing  "that  any  addition  erected  to  a  former 
building,  or  any  fixed  machinery  or  gearing,  or  other  fixtures  for  manufac- 
turing purposes,  shall  be  considered  as  a  building  for  the  purposes  of  this 
act,  but  no  building  shall  be  subject  to  the  provisions  of  this  act  for  any 
debt  contracted  for  repairs  done  thereto,  or  alterations  made  therein. ' ' 
Coddington  V  Dry  Dock  Co.,  31  N.  J.  Law,  477  (1863).  Neither  is  it  a 
building  within  the  meaning  of  a  statute  (Nix.,  Dig.,  487),  giving  a  lien  for 
laVjor  and  materials  expended  thereon,  upon  every  building  erected  or  built 
within  the  State  and  on  the  land  whereon  it  stands,  including  the  curtilage 
wherein  the  same  is  erected.  Coddington  v.  Dry  Dock  Co.,  supra.  See 
contra,  Olmstead  v.  McNall,  7  Blackf.,  387  (184.5);  Gallbreath  v.  Davidson, 
2.5  Ark.,  490  (1869).  [A  dry  dock  securely  and  permanently  moored  to  the 
bank  for  more  than  fourteen  years,  partakes  more  of  the  nature  of  a  fixture 
attached  to  the  realty  than  of  a  boat,  and  is  not  a  subject  for  salvage 
service.  Cope  v.  Vallette  Dry  Dock  Co.,  16  Fed.,  924,  925  (U.  S.  C.  C,  La., 
1883).  A  wharf -boat  is  a  part  of  the  wharf  to  which  it  is  attached,  and 
a  landing  at  the  wharf-boat  is  a  landing  at  the  wharf  so  far  as  the 
liability  of  the  owner  is  concerned.  Davis  v,  Keamer,  105  Ind.,  318,  322 
(1885).] 

44 


CHAP.  I.]  CONSTRUCTIVE  ANNEXATION.  *33 

land,  the  onus  of  shewing  that  they  were  so  intended  lying  on 
those  who  assert  that  they  have  ceased  to  be  chattels,  and  that, 
on  the  contrary,  an  article  which  is  affixed  to  the  land,  even 
slightly,  is  to  be  considered  as  part  of  the  land,  unless  the  cir- 
cumstances are  such  as  to  shew  that  it  was  intended  all  along 
to  continue  a  chattel,  the  onus  lying  on  those  who  contend  that 
it  is  a  ehattel.*^  This  last  proposition  seems  to  be  in  effect  the 
basis  of  the  judgment  of  the  Court  of  Common  Pleas,  deliv- 
ered by  Maule,  J.,  in  Wilde  v.  Waters  J  This,  however,  only 
removes  the  difficulty  one  step,  for  it  still  remains  a  question 
in  each  case  whether  the  circumstances  are  sufficient  to  satisfy 
the  onus.  In  some  cases,  such  as  the  anchor  of  the  ship,  or 
the  ordinary  instance  given  of  a  carpet  nailed  to  the  floor  of 
a  room,  the  nature  of  the  thing  sufficiently  shews  it  is  only 
fastened  as  a  chattel  temporarily,  and  not  affixed  permanently 
as  part  of  the  land.  But  ordinary  trade  or  tenant  fixtures, 
which  are  put  up  with  the  intention  that  they  shall  be  removed 
by  the  tenant  (and  so  are  put  up  for  a  purpose  in  one  sense 
only  temporary,  and  certainly  not  for  the  purpose  of  improv- 
ing the  reversionary  interest  of  the  landlord),  have  always  been 
considered  as  part  of  the  land,  though  severable  by  the  tenant. 
In  most,  if  not  all,  of  such  cases,  the  reason  why  the  articles 
are  considered  fixtures,  is  probably  that  indicated  by  Wood, 
V.  C,  in  Boyd  v.  Shorrock,^  that  the  tenant  indicates  by  the 
mode  in  which  he  put  them  up,  that  he  regards  them  as  at- 
tached to  the  property  during  his  interest  in  that  property." 

•III.     Constructive  Annexation.  [*33] 

With  regard  to  the  sul),ject  of  constructive  annexation,  it  is 
easier  to  furnish  examples  than  to  give  an  accurate  definition 
of  the  term.  Thus,  the  keys,  doors,  windows,  etc.,  of  a  house, 
although  they  are  in  one  sense  distinct  things,  yet  are  part  of 
the  freehold,  and  accordingly  they  go  to  the  heir  as  part  of 
the  inheritanec,  and  pass  by  a  conveyance  or  devise  of  the  house.* 

«  As  to  the  varying  presumption  as  to  intention,  see  post,  under  the  head 
landlord  and  tenant,  vendor  and  vendee,  etc. 

7  16  C.  B.,  637   (1855)  ;  s.  C,  24  L.  J.,  C.  P.,  193. 

8L.  R.,   5   Eq.,   78    (1867). 

•  See  Liford's  Case,  11  Co.,  50  b  (1614) ;  Com.  Dig.  Biens  B;  Godolph.  pt. 

45 


•34  THE  LAW  OF  FIXTURES.  [CIIAP.  I. 

So  in  Wystow's  (or  Wistow's)  case  of  Gray's  Inn^^  it  was 
resolved  that  if  a  man  has  a  horse  mill,  and  the  miller  takes  the 
mill  stone  out  of  the  mill  to  pick  it,  in  order  to  make  it  grind' 
the  better,  although  it  is  actually  severed  from  the  mill,  yet  it 
remains  parcel  thereof,  as  if  it  had  always  been  lying  upon  the 
other  stone,  and  accordingly  it  will  pass  by  a  lease  or  convey- 
ance of  the  mill.^i 

The  iron  rolls  and  floor  in  Voorhis  v.  Freeman,^  ^  ^nd  Pyle  v. 
Pennock,^^  heretofore  cited,  would  seem  to  have  been  pi"oper 
eases  for  the  application  of  the  doctrine  of  constructive  annex- 
ation, though  the  cases  were  decided  upon  another  ground. 

So  mill  saws  and  leather  belting,  purchased  by  the  owner  of 
a  saw  mill  for  use  therein,  and  which  have  been  attached  and 
iised  as  a  part  of  the  mill  without  any  intention  at  the  time  of 
removing  them,  and  which  are  essential  parts  of  the  mill,  be- 
come and  remain  parts  of  the  realty,  though  temporarily  sev- 
[*34]    *ered  and  stored  in  the  file  room  adjoining  the  mill.^* 

2  ch.  14,  §  1;  Cook's  Case,  Mo.,  177  (1581)  ;  Shep.  Touch.,  470;  Eegina  v. 
Wheeler,  6  Mod.,  187  (1704)  ;  Eex  v.  Crosse,  1  Sid.,  207  (1675)  ;  Tomlinson 
V.  White,  Barnes,  93  (1735)  ;  Bishop  v.  Elliott,  11  Exch.,  113  (1855)  ;  s.  c, 
1  Jur.  (N.  S.),  962;  24  L.  J.  (N.  S.)  Exch.,  229.  [Geirke  v.  Schwartz,  45 
N.  y.  Supp.,  928  (1897)  ;  plates  and  papers  used  with  a  press.  Crawford 
V.  Findlay,  18  Gr.  Ch.,  51,  54  (Ont.,  1871)  ;  watchman's  clock  in  a  factory. 
Haggert  v.  Brampton,  28  Can.,  174,  182  (1897)  ;  an  alarm-bell  in  the  tower 
of  a  city  fire  engine  house.  Harrisburg  v,  Hope  Fire  Co.,  2  Pearson,  269, 
271  (Pa.,  1876)  ;  an  ice-house  with  the  ice  therein.  Hill  v.  Mundy,  89  Ky., 
36  (1889);  scenery.  Security  Tr.  Co.  v.  Temple  Co.,  58  Atl.,  865  (N.  J. 
Ch.,  1904).] 

18  14  Hen.  8,  25b  (1522),  cited  in  Liford's  Case,  11  Co.  50b.  Wystow's 
Case  will  be  found  translated  in  4  Man.  &  Ry.,  280,  note  (g). 

11  See,  also,  Eegina  v.  Wheeler,  6  Mod.,  187  (1704)  ;  Walmsley  v.  Milne,  7 
C.  B.  (N.  S.),  115  (1859);  s.  c,  6  Jur.  (N.  S.),  125;  29  L.  J.  C.  P.,  97; 
1  L.  T.  (N.  S.),  62;  8  Am.  Law  Eeg.,  373.  [See  Grimshawe  v.  Burnham,  25 
Up.   Can.,  Q.   B.,   147    (1865).] 

12  2  W.  &  S.,   116    (1841). 

13  Id.  390  (1841);  see,  also.  Ex  parte  Astbury,  L.  E.  4  Ch.  App.,  630 
(1869) ;  Metropolitan  Counties,  etc.,  Society  v.  Brown,  26  Beav.,  454  (1859) ; 
Fisher  v,  Dixon,  12  CI.  &  Fin.,  312  (1845). 

"Burnside  v.  Twitchell,  43  N.  H.,  390  (1861);  see,  also,  Wadleigh  v. 
Janvrin,  41  N.  H.,  503  (1860)  ;  Ex  parte  Astbury  (supra)  ;  Bliss  v.  Misner, 
4  N.  Y.  Supreme  Ct.  E.,  633  (1874).  [Duplicate  machinery  for  emer- 
gencies. Delaware,  L.  &  W.  E.  E.  Co.  v.  Oxford  Iron  Co.,  36  N.  J.  Eq.,  452, 
456   (1883).] 

46 


CH.VP.  I.]  CONSTRUCTIVE  ANNEXATION.  *34 

The  cases  on  this  subject  are  very  similar  in  principle,  and  will 
be  found  referred  to  in  the  notes  below. 

In  order  to  constitute  a  constructive  annexation  to  the  realty, 
the  article  in  question,  though  not  physically  connected  there- 
with, must  not  only  be  appropriated  or  adapted,  and  accessory 
to  the  fit  and  beneficial  use  of  the  principal  thing,  the  realty, 
and  not  to  a  matter  of  a  mere  personal  nature,  but  must  also 
be  such  as  goes  to  complete  the  building,  machinery,  etc.,  con- 
stituting the  principal  thing  which  is  affixed  to  the  land,  and 
mast  be  such  as,  if  removed,  would  leave  the  principal  thing 
incomplete  and  unfit  for  use,  and  would  not  itself  alone  be 
e(iually  useful  and  adapted  for  general  use  elsewhere.^  ^  In  re- 
spect to  all  cases  of  constructive  annexation,  there  exists  both 
adaptation  to  the  enjoyment  of  the  land  and  localization  in  use, 
as  obvious  elements  of  distinction  from  mere  chattels  personal."® 

This  point  has  undergone  considerable  discussion  with  refer- 
ence to  the  cars,  locomotives,  and  other  rolling  stock  of  rail- 
roads, and  considerable  difi'erence  of  opinion  has  hitherto  existed 
on  the  subject. 

Some  of  the  cases  carrying  out  the  rule  as  to  adaptation 
to  be  used  with,  and  being  essential  to,  the  beneficial  enjoyment 
of  the  real  estate  to  its  logical  results,  have  decided  such  rolling 
stock  to  be  a  part  of  the  realty;  and  have  accordingly  held  that 
rolling  stock,  consisting  of  cars,  locomotives,  etc.,  are  fixtures, 

"See  Beardsley  v.  Ontario  Bank,  31  Barb.,  632  (1859).  [Winslow  v. 
Bromich,  54  Kan.,  300,  306  (1894);  Hill  v.  Mundy,  89  Ky.,  36  (1889); 
Dudley  v.  Hurst,  67  Md.,  44,  50  (1887);  Wolford  v.  Baxter,  33  Minn., 
12,  18  (1884)  ;  Dana  v.  Burke,  62  N.  H.,  627,  629  (1883)  ;  see,  also.  Water- 
town  Steam  Engine  Co.  v.  Davis,  5  Houston  (Del.),  192,  214  (1877);  Gid- 
dings  V.  Freedley,  128  Fed.,  355,  359  (U.  S.  C.  C.  A.,  Vt.,  1904).] 

i«Hoyle  V.  Plattsburgh,  &c.,  R.  E.  Co.,  54  N.  Y.,  314,  323   (1873). 

[Where  vaults  are  excavated  for  tlic  special  purpose  of  storing  casks  for 
holding  beer,  and  casks  are  placed  therein  upon  a  platform,  but  the  vault 
was  not  excavated  in  any  special  shape  to  suit  these  particular  casks,  nor 
were  the  casks  constructed  to  fit  into  any  particular  place,  but  might  be 
Bold  to  other  brewers  for  similar  use,  there  is  no  constructive  annexation. 
There  is  no  difference  between  them  and  ordinary  beer  kegs,  except  they 
were  used  exclusively  inside  the  vault,  and  were  larger  and  more  difficult  to 
be  moved.     Wolford  v.  Baxter,  33  Minn.,  12,  19   (1884).] 

[A  pleasure  boat,  built  for  use  in  connection  with  a  summer  cottage,  and 
stored  upon  the  premises,  is  not  constructively  annexed  so  as  to  pass  under 
a  devise  of  the  cottage-grounds.     Dana  v.  Burke,  62  N.  H.,  627    (1883).] 

47 


*35  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

and  pass  by  a  mortgage  of  the  track  or  roadway,^'''  In 
[*35]  *Fariners'  Loan  &  Trust  Co.  v.  ITendrickson,  the  question 
for  the  judgment  of  the  court  was,  whether  the  judgment  credit- 
ors of  the  Fhishing  Rail  Road  Co.,  by  virtue  of  their  several 
judgments  and  executions,  and  the  levies  made  by  the  sheriff, 
acquired  a  lien  upon  the  rolling  stock  levied  on  as  the  prop- 
erty of  said  company,  superior  in  law  to  the  claim  of  the  plain- 
ly See  Farmers'  Loan  &  Trust  Co.  v.  Hendrickson,  25  Barb.,  484  (1857) ; 
Palmer  v.  Forbes,  23  111.,  301,  312  (1860);  Farmers'  Loan  &  Trust  Co.  v. 
St.  Jo.,  etc.,  E'w'y.  Co.,  3  Dill.,  C.  C,  412  (1875).  See,  also.  Brown  Fixt., 
§76a;  Pennock  v.  Coe,  23  How.,  117  (1859);  Pierce  v.  Emery,  32  N.  H., 
484  (1856)  ;  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.,  646,  note  (1864)  ;  Hunt 
V.  Bullock,  23  111.,  320  (1860).  [Mich.  Cent.  K.  E.  Co.  v.  Chi.  &  Mich.  L.  S. 
K.  K.  Co.,  1  111.  App.,  399,  409  (1878)  ;  Ontario  Car  Co.  v.  Farwell,  18  Can., 
1  (1890).  A  distinction  is  made  between  the  rolling  stock  of  an  ordinary 
steam  railway,  which  may  be  hauled  thousands  of  miles  from  home,  and  an 
electric  railway  ear,  which  is  part  of  one  great  machine,  operated  by  means 
of  a  continuous  current  of  electricity  generated  in  the  power  house,  and 
passing  by  an  overhead  wire,  down  a  trolley-pole  through  the  car  to  the 
rails,  and  incapable  of  use  when  detached  from  the  rails.  Kirkpatrick  v. 
Cornwall  Street  K'y  Co.,  2  Ont.  Law,  113,  123  (App.,  1901).  Wheels  and 
axles  upon  which  lumber  is  placed  for  the  purpose  of  being  run  through  a 
dry  kiln,  such  dry  kiln  having  been  especially  constructed  for  the  use  of 
the  wheels,  and  useless  for  any  other  purpose  without  alteration,  and  such 
wheels  ha^-ing  been  fitted  to  a  wooden  tramway  running  clear  through  the 
dry  kiln  and  of  little  value  apart  from  the  dry  kiln,  are  constructively 
attached  to  the  building.  Meek  v.  Parker,  63  Ark.,  367,  371  (1897).  Cars 
used  in  a  brick  yard  to  carry  bricks  from  the  molds  into  the  drier,  are 
realty.  Curran  v.  Smith,  37  111.  App.,  69  (1890).  In  Central  Tr.  Co.  v, 
Sheffield  Coal  E'y  Co.,  42  Fed.,  106,  110  (U.  S.  C.  C,  Ala.,  1890),  a  mechan- 
ics' lien  was  allowed  for  coal  cars  for  a  mine.  In  some  states  rolling  stock 
is,  by  statute,  made  a  part  of  the  realty.  See  Central  Trust  Co.  v.  Morau, 
56  Minn.,  188,  193  (1894);  Eailroad  Co.  v.  James,  73  U.  S.,  750,  751 
(1867).]  So,  in  Titus  v.  Mabec,  25  111.,  257  (1861),  it  was  held  that  a 
freight  car  on  the  road,  side-track  or  turn-table  of  the  company,  was  realty, 
and  not  subject  to  levy  and  sale  on  execution  as  personalty.  This  case  was 
followed  and  approved  by  Titus  v.  Ginheimer,  27  111.,  462  (1861).  [Barker 
V.  Central  Vermont  E'y  Co.,  14  Que.,  C.  S.,  467,  470  (1898)  ;  Grand  Trunk 
E'y  Co.  V.  Eastern  Townships'  Bank,  16  Lower  Can.,  173,  175  (1865).] 
See,  however,  Sangamon,  etc.,  E.  E.  Co.  v.  Morgan,  14  111.,  163  (1852). 
[Where  by  statute  of  Vermont,  cars  pass  under  a  mortgage  of  the  road, 
they  can  not  be  seized  on  execution  in  Quebec,  although  the  cars  were  in 
Quebec  at  the  time  the  mortgage  was  executed  in  Vermont.  Baker  v.  Cen- 
tral Vermont  E'y,  4  Eevue  de  Juris.,  454  (1898).  Eegulated  by  statute. 
Central  Trust  Co.  v.  Moran,  56  Minn.,   188,   192    (1894).] 

48 


CHAP.  I.]  CONSTRUCTIVE   ANNEXATION.  *36 

tiffs  under  and  by  virtue  of  prior  mortgages  of  the  track  or 
roadway,  executed  by  the  said  company.     The  opinion  of  the 
court  was   delivered  by   Strong,   P.   J.:     "That  railway   cars 
are  a  necessary  part  of  the  entire  establishment,  without  which 
it  would  be  inoperative  and  valueless,  there  can  of  course  be 
no  doubt..    Their  wheels  are  fitted  to  the  rails;  they  are  con- 
stantly upon  the  rails,   and,   except  in  cases  of  accidents,  or 
when  taken  off  for  repairs,  nowhere  else;  they  are  not  moved 
off  the   land  belonging  to  the   company;  they  are  peculiarly 
adapted  to  the  use  of  the  railway,  and  in  fact  can  not  be  ap- 
plied to  any  other  purpose;  they  are  not,  like  farming  utensils,^ 
and   possibly   the   machinery    in    factories,    and   many   of   the 
movable  appliances  to  stores  and  dwellings,  the  objects  of  gen- 
eral trade;  they  are  permanently  used  on  the  particular  road 
where  they  are  employed,  and  are  seldom,  if  ever,  changed  to 
any  other.     ]\Iany  of  these  are   strong   characteristics   of  the 
realty;  some  of  them  have  often  been  deemed  conclusive.     *     * 
*     It  is  true  that  no  mechanical  or  agricultural  business  can  be 
carried   on  to  much  extent   without   tools   or   farming   imple- 
ments, and  such  tools  and  implements  are  universally  conceded 
to  be  personal  property;  but  then  such  tools  or  implements 
are  not  peculiarly  adapted  or  confined  to  any  particular  estab- 
lishment, but  may  be  used  upon  them  generally,  and  are  sub- 
jects of   frequent  barter.     It  is  difficult,   I   admit,   as  to  the 
stationary  machinery  in  a  factory,   and  articles  of  a  similar 
character  in  a  dwelling  house,  which  are  not  absolutely  fastened; 
but   although   they   are   considered    as   personal    property    for 
reasons  peculiar  to  them,  and  not  of  universal  application,  j'-et 
•such  reasons  do  not  seem  to  me  sufficient,  while  many  [*36] 
things  become  fixtures  without  physical  annexation. 

**If  railway  cars  were  used  in  any  other  place  than  upon  the 
lands  belonging  to  the  company,  or  for  any  other  purpose  than 
in  the  transaction  of  its  business,  or  were  constructed  in  such 
shape  and  so  extensively  as  to  become  objects  of  general  trade, 
or  were  not  a  nocossary  part  of  the  entire  establishment,  I 
midit  consider  myself  as  compelled  by  the  weight  of  authority 
to  doeide,  that  as  they  are  not  physically  annexed  to  what  is 
usuiilly  denominated  real  estate,  they  must  be  deemed  personal 
property.  But  as  each  and  all  of  those  characteristics  or  inci- 
dents are  wanting,  the  considerations  which  I  have  mentioned, 
4  49 


•36  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

or  to  which  I  have  alluded,  leading  to  an  opposite  conclusion, 
require  us  to  determine  that  they  are  included  as  fixtures,  or 
necessary  incidents  in  a  conveyance  of  the  real  estate. ' '  ^ 

On  the  other  hand,  it  has  been  held  in  several  well  consid- 
ered cases,  that  such  rolling  stock  is  in  all  respects  personal 
property  and  not  a  fixture,  and  hence  does  not  pass  by  a  mort- 
gage of  the  track  or  roadway,  is  liable  to  sale  on  execution,  and 
for  the  collection  of  taxes  against  the  company  as  personalty.^ 

1  The  following  authorities  were  cited  by  the  learned  judge  in  support  of 
this  opinion:  2  Kent  Com.,  342;  Suedeker  v.  Warring,  12  N.  Y.,  170 
(1S54) ;  Bishop  v.  Bishop,  11  N.  Y.,  123  (1854)  ;  Olympic  Theater,  2  Browne 
(Penn.),  285  (1813)  ;  Farrar  v.  Stackpole,  6  Me.,  154  (1829)  ;  Lushington 
V.  Sewell,  1  Sim.,  435,  480  (1827) ;  Eex  v.  St.  Nicholas  Gloucester,  1  Term, 
723,  note;  s.  c,  Cald.,  262  (1783);  3  Dane's  Abr.,  157. 

2  Stevens  v.  Buffalo,  &c.,  E.  E.  Co.,  31  Barb.,  590  (1858);  Beardsley  v. 
Ontario  Bank,  31  Barb.,  619  (1859);  Eandall  v.  Elwell,  52  N.  Y.,  521 
(1873)  ;  s.  C,  11  Am.  Eep.,  747;  Chicago  &  N.  W.  Eailway  Co.  v.  Ft.  How- 
ard, 21  Wise,  44  (1866)  ;  Hoyle  v.  Plattsburgh,  &c.,  E.  E.  Co.,  54  N.  Y., 
314  (1873);  s.  C,  51  Barb.,  45;  47  Barb.,  104;  see,  also,  Sangamon,  &c., 
E.  E.  Co.  V.  Morgan,  14  111.,  163  (1852).  [Neilson  v.  Iowa  Eastern  E.  Co., 
51  Iowa,  184,  715  (1879)  ;  Boston,  C.  &  M.  E.  E.  v.  Gilmore,  37  N.  H., 
410,  422  (1858)  ;  Williamson  v.  New  Jersey  S.  E.  E.  Co.,  29  N.  J.  Eq.,  311, 
331  (1878),  reversing  28  N.  J.  Eq.,  277  (1877) ;  Speiden  v.  Parker,  46 
N,  J.  Eq.,  292,  293  (1886)  ;  Coe  v.  Columbus,  P.  &  I.  E.  E.  Co.,  10  Ohio  St., 
372,  378  (1859)  ;  Salt  Lake  County  v.  Board  of  Equalization,  18  Utah,  172, 
176  (1898);  see,  also,  Hall  v.  Carney,  140  Mass.,  131,  132  (1885);  State 
Treas.  v.  Somerville  &  E.  E.  E.  Co.,  28  N.  J.  Law,  21  (1859) ;  Hardesty  v. 
Pyle,  15  Fed.,  778,  779  (U.  S.  C.  C,  Pa.,  1883) ;  Wall  v.  Norfolk  &  W.  E. 
E.  Co.,  52  W.  Va.,  485,  489  (1903).  Seevers,  J.,  in  delivering  the  opinion 
of  the  court  in  Neilson  v.  Iowa  Eastern  E.  Co.,  51  Iowa,  184,  190  (1879), 
says:  "Why  the  labored  efforts  of  counsel,  sustained  by  the  elaborate 
opinions  of  the  highest  court  in  the  country,  demonstrating  that  mortgages 
executed  by  such  corporations  were  liens  on  after  acquired  rolling  stock,  if 
the  same  was  appurtenant  to  the  realty?  About  an  afterward  erected 
station  house  there  never  was  any  doubt,  because  it  is  permanently  annexed 
to  the  real  estate,  such  being  the  intention.  Not  so,  however,  as  to  rolling- 
stock;  hence  the  strain  to  prove  it  was  covered  by  mortgages  previously 
executed. ' '  In  the  same  case  it  is  said  that  the  fact  that  mortgages  upon 
railroads  especially  mention  rolling-stock,  indicates  an  intention  not  to 
make  it  a  part  of  the  realty.  In  many  states,  rolling-stock  is  made  per- 
sonal property  by  the  constitution  or  by  statute.  See  Columbia  Trust  Co.  v. 
Kentucky  E'y  Co.,  22  U.  S.  App.,  54,  68  (U.  S.  C.  C.  A.,  Ky.,  1894)  ;  Eade- 
baugh  v.  Tacoma  &  P.  E.  E.  Co.,  8  Wash.,  570  (1894)  ;  Illinois  Bank  v. 
Seattle  E'y  Co.,  82  Fed.,  936,  941  (U.  S.  C.  C.  A.,  Wash.,  1897).]  But 
parties  taking  a  chattel  mortgage  upon  such  rolling-stock,  may  by  their 

50 


CHAP.  I.]  CONSTKUCTIVE   ANNEXATION.  *37 

The  point  was  directly  ruled  in  Stevens  v.  Buffalo,  &c.,  R.  R. 
Co.,  where  the  question  was  fully  and  ably  considered,  Greene, 
J.,  delivering  the  opinion  of  the  court :  ' '  The  engines,  ears, 
etc.,  composing  the  rolling  stock,  it  is  well  known  are  manu- 
*factured  for  sale  to  the  different  roads  in  the  process  of  [*37] 
construction  and  operation  throughout  the  country.  They  are 
as  well  adapted  for  use  on  one  road  as  another  of  the  same  width 
or  gauge  as  the  road  for  which  they  were  built  or  on  which 
they  are  in  use ;  and  partly  worn  stock  of  this  kind  is  frequently 
sold  from  roads  on  which  it  has  been  used,  for  the  purpose  of 
replacing  it  by  new  and  improved  machinery.  It  has  always 
heretofore  been  treated  as  personal  property,  liable  to  seizure 
and  sale  on  execution,  and  has  often,  by  means  of  that  process, 
been  appropriated  to  the  payment  of  the  debts  of  the  company." 
*  *  *  "As  was  remarked  by  Judge  Denio,  in  the  case  of 
Bishop  V.  Bishop,  1  Kern.  126,  *we  are  allowed  to  know  judi- 
cially what  every  person  out  of  the  court  knows,'  that  the 
engine,  cars  and  other  rolling  stock  on  railroads  are  in  their 
nature  no  more  peculiarly  adapted,  nor  in  point  of  fact  confined 
to  any  particular  establishment  or  road,  than  farming  imple- 
ments or  mechanical  tools  are  to  particular  farms  or  work- 
shops. True,  there  is  a  difference  in  the  width  of  roads,  re- 
quiring a  corresponding  difference  in  the  width  of  the  cars,  as 
there  is  a  difference  in  the  surface  and  soil  of  farming  lands, 
requiring  a  corresponding  adaptation  to  them  of  implements 
and  machinery  used  in  agricultural  operations.  It  is  a  well 
known  matter  of  fact,  moreover,  that  the  rolling  stock  of  rail- 
roads is  often  run  and  used  habitually  on  other  roads,  hundreds 
of  miles  distant  from  the  road  to  which  such  stock  belongs, 
and  into  different  States  from  that  in  which  the  road  is  located. 
It  not  only  may  be  there,  but  it  is  in  fact  used  'generally'  upon 
railroads  without  regard  to  the  particular  road  to  which  it  be- 
longs. This  practice  is  so  common,  when  roads  of  the  some 
width  connect,  as  to  authorize  me  to  refer  to  it  as  a  fact  of 
general  notoriety.     That  this  species  of  property  is  a  subject 

concluf't,  estop  th^msolvos  from  rlaimlnp  tliat  a  prior  roal  ostato  mortpape 
does  not  fover  such  subsequently  acquired  rolling-stock  as  real  estate. 
Beniamin  v.  Elmira,  &c.,  R,  R.  Co.,  54  N.  Y.,  675  (1873).  Sec  post,  Taxa- 
tion; Execution;  also  Const.  III.  (1870),  Art.  XI.,  §  10. 

51 


*38  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

of  frequent  aud  extensive  commerce  or  barter,  I  need  hardly 
say.  In  this  respect  I  confess  I  can  see  no  difference  between 
it  and  the  other  kinds  of  property  referred  to  by  the  learned 
Justice,^  none  certainly  that  seems  to  justify  the  attempted 
distinction.  As  I  have  remarked  in  another  place,  this  prop- 
[*38]  *erty  is  constantly  being  manufactured  to  supply  the  con- 
stantly existing  and  increasing  demand.  It  is  sold  as  an  article 
of  commerce  by  the  manufacturer,  to  railroad  companies  for 
their  use,  and  not  unfrequently  made  a  subject  of  bargain  and 
sale  between  different  companies."     *     *     * 

* '  Some  cars,  it  is  true,  are  essential  to  the  operation  of  a  rail- 
road. But  the  particular  cars  are  no  more  necessary  for  that 
purpose  than  others  of  the  same  construction,  which  might  be 
obtained  to  supply  their  places.  The  same  means  that  put  these 
cars  on  the  road  w^ould  procure  others  to  take  their  places  if 
they  should  be  removed.  To  sell  the  rolling  stock  of  a  rail- 
road would  no  more  be  a  destruction  of  the  road,  in  legal  con- 
templation, than  the  sale  of  a  farmer's  teams,  stock  and  farming 
utensils  would  be  a  destruction  of  his  farm.  In  either  case 
there  may  be  a  necessity  of  keeping  the  personal  property,  aris- 
ing out  of  the  pecuniary  inability  of  the  owner  to  replace  it, 
and  thus  make  the  use  of  the  other  property,  to  which  the 
personalty  was  essential,  profitable.  But  the  law  regards  no  such 
necessity  as  this  for  any  purpose;  certainly  not  for  the  purpose 
of  enabling  a  debtor-  to  retain  his  property  for  his  own  emolu- 
ment, and  set  his  creditors,  or  any  class  of  them,  at  defiance." 
*  *  *  "The  argument  in  favor  of  the  position  that  engines 
anl  railroad  cars  are  fixtures,  applies  with  equal  force  to  fuel, 
and  indeed  to  everything  else  necessary  to  the  effective  opera- 
tion of  a  railroad.  Engines  and  cars  without  fuel  w^ould  be  as 
useless  as  the  road  bed  and  superstructure  would  be  without 
engines  and  cars,  and  if,  for  the  reasons  now  urged,  the  latter  are 
to  be  regarded  as  fixtures,  why  not  the  former?  Many  reasons 
given  why  cars  are  fixtures,  are  more  applicable  to  fuel  than 
to  cars,  for  that  is  always  kept  and  consumed  on  the  road,  while 
[*39]  the  ears  are  frequently  used  elsewhere. "^     The  want  *of 

1  In  Farmers '  Loan  &  Trust  Co.  v.  Hendriekson,  cited  ante. 

2  Fuel,  oil  and  the  like,  which  are  designed  for  consumption  in  the  use, 
and  which  may  be  sold  and  carried  away,  and  used  as  well  for  other  purposes 

52 


CHAP.  I.]  INTENTION.  *40 

the  element  of  localization  in  use,  for  want  of  which  rolling 
stock  cannot  be  subjected  to  the  laws  regulating  taxation  and 
liens  on  real  estate,  was,  in  Hoyle  v.  Plattsburgh  R.  R.  Co.,^  re- 
garded as  a  controlling  and  conclusive  reason  why  the  character 
of  realty  should  not  be  given  to  rolling  stock  of  a  railroad.  The 
foregoing  reasoning  seems  entirely  satisfactory;  and  the  better 
opinion,  and  the  one  supported  by  the  weight  of  authority,  is 
believed  to  be  that  the  rolling  stock  of  a  railroad  is  simply 
personalty  and  not  a  fixture.^ 

IV.    Intention. 

With  respect  to  the  intention  of  the  party  as  to  annexing 
an  article  to  the  freehold,  it  is  settled  that  mere  intention  to 
annex,  unaccompanied  with  any  act  toward  carrying  that  inten- 
tion into  effect,  is  insufficient  to  convert  an  article  from  person- 
alty into  realty;"*  and  conversely  a  mer^  unexpressed  *men-  [*40] 

/ 
as  in  the  operation  of  the  road,  and  when  taken  away  have  no  distinguishing 
marks  to  show  that  they  were  designed  for  railroad  uses,  are  personal  prop- 
erty simply,  and  not  fixtures.  Palmer  v.  Forbes,  23  111.,  301,  312  (1860)  ; 
Hunt  V.  Bullock,  Id.,  320  (1860);  Farmers'  Loan  &  Trust  Co.  v.  St.  Jo., 
etc.,  R'w'y.  Co.,  3  Dill.  C.  C,  412  (1875).  [Coal.  Chicago  &  N.  W.  R'y 
Co.  V.  Ellson,  113  Mich.,  30  (1897)  ;  cord-wood.  Wyatt  v.  Levis  &  K.  E.  E. 
Co.,  6  Que.  L.  R.,  213,  223  (1880);  lubricating  oil.  Standard  Oil  Co.  v. 
Lane,  75  Wis.,  636  (1890).]  So  as  to  office  furniture,  etc.  Hunt  v.  Bul- 
lock (supra).  [Wyatt  v.  Levis  &  K.  E.  E.  Co.,  6  Que.  L.  E.,  213,  223 
(1880).]  So  as  to  an  iron  safe  and  an  iron  planing  machine.  Titus  v. 
Mabee,  25  111.,  257   (1861). 

2  54  N.  Y.,   314,   325    (1873). 

3  See  the  cases  cited  ante  in  note. 

*  Thus  the  simple  intention  on  the  part  of  the  vendor,  before  selling  his 
farm,  to  erect  certain  posts  into  a  fence,  and  hewed  timber  into  a  granary, 
without  having  done  anything  toward  those  objects,  more  than  to  haul  said 
posts  and  timber  on  to  the  farm  before  the  sale  of  the  farm,  is  not  sufficient 
to  convert  tlicm  into  fixtures.  Cook  v.  Whiting,  16  III.,  480  (1855).  [Tlinkle 
v.  Hinkle,  69  liid.,  134  (1H79).  Tiumber  deposited  upon  a  homestead  lot  for 
repairing  the  homestead,  is  not  exempt  from  attachment.  Carkiii  v.  Babbitt, 
58  N.  II.,  579  (1879).  As  to  fertilizers,  see  Joiner  v.  Adams,  114  Ga.,  389 
(1901).]  See,  however,  Conklin  v.  Parsons,  1  Chand.,  240  (1849);  s.  C, 
2  Pinney,  264;  Eipley  v.  Page,  12  Vt.,  353  (1839).  ["It  seems  to  be  well 
settled  in  this  state  that  suitable  materials  deposited  upon  a  farm  for  the 
purpose   and   with   the   intention   of   building  necessary   fences   with   them 

53 


*40  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

thereon,  pass  by  a  conveyance  of  the  land  as  a  part  of  the  realty. ' '    Hackett 
V.  Amsdcn,  57  Vt.,  432,  43(5  (1885).] 

So,  mill  saws  purchased  for  use  iu  a  saw  mill,  but  never  set  in  the  mill  nor 
used  there,  nor  in  any  way  attached  to  it,  though  purchased  with  the  inten- 
tion of  using  them  there,  are  not  fixtures.  Burnsido  v.  Twitchell,  43  N.  H., 
390  (1861).  So,  as  to  rolls  cast  for  a  rolling  mill,  paid  for  and  delivered  at 
the  mill,  but  never  turned  or  finished  off  or  put  into  the  mill.  Johnson  v. 
Mehaffey,  43  Penn.  St.,  308  (1862).  Ex  parte  Astbury  L.  R.,  4  Ch.  App., 
630  (1869).  [So  as  to  machinery,  although  work  had  been  commenced  with 
the  intention  of  putting  it  in  place.  Miller  v.  "Wilson,  71  Iowa,  610,  614 
(1887).  But  in  Pattou  v.  Moore,  16  W.  Va.,  428,  439  (1880),  an  engine 
and  boiler  hauled  to  a  mill  yard  with  a  hona  fide  intention  by  the  mill 
owner  to  make  them  fixtures  in  the  mill,  and  without  which  the  mill  would 
be  useless,  were  held  to  be  a  part  of  the  realty.  Otherwise,  persons  involved 
in  any  degree  would  not  have  much  encouragement  to  erect  permanent  im- 
provements, and  building  schemes  would  be  frustrated  and  irreparable  loss 
inflicted  by  a  levy  upon  the  materials.  In  Spruhen  v.  Stout,  52  Wis.,  517, 
525  (1881),  a  mechanics'  lien  w-as  given  for  a  draft  tube  which  had  not 
"been  attached  to  the  mill  through  no  fault  of  the  claimants,  but  had  been 
designed  and  procured  for  that  purpose.] 

So,  a  stone  quarried  and  brought  from  a  distance  into  a  door  yard,  for 
the  purpose  of  being  fitted  and  used  at  some  future  time  for  a  door  step, 
but  not  actually  so  fitted  and  placed,  is  a  mere  chattel.  Woodman  v.  Pease, 
17  N.  H.,  282  (1845).  [Taking  stones  from  the  surface  of  a  farm,  and 
piling  them  up  with  the  intention  of  using  them  for  building,  do  not  make 
them  real  estate.  McCarthy  v.  McCarthy,  20  Can.  Law  T.,  Occ.  N.,  211, 
212    (Co.  Ct.,  Ont.,   1900).] 

See,  also,  Manchester  Mills  v.  Eundlett,  23  N.  H.,  271  (1851)  ;  Peck  v. 
Batchelder,  40  Vt.,  233  (1867)  ;  Hedge's  Case,  1  Leach  Cr.  L.,  240  (1779)  ; 
Tripp  V.  Armitage,  4  M.  &  W.,  687  (1839);  s.  c,  8  L.  J.  (N.  S.),  Exch., 
107;  Johnson  v.  Hunt,  11  Wend.,  135  (1834).  [Wolford  v.  Baxter,  33 
Minn.,  12,  19  (1884) ;  Williamson  v.  New  Jersey  S.  R.  R.  Co.,  29  N.  J.  Eq., 
311,  329  (1878)  ;  National  Bank  v.  North,  160  Pa.  St.,  303  (1894)  ;  see,  also, 
Roddy  V.  Brick,  42  N.  J.  Eq.,  218,  224  (1886);  McKeage  v.  Hanover  Ins. 
Co.,  81  N.  Y.,  38,  41  (1880).]  See,  however,  the  next  note;  Johnston  v. 
Dobie,  Mor.  Diet.,  5443  (1783),  cited  post,  in  chap.  9. 

Art.  468,  Civil  Code  of  La.,  provides  that  "materials  arising  from  the 
demolition  of  a  building,  those  which  are  collected  for  the  purpose  of  raising 
a  new  building,  are  movables  until  they  have  been  made  use  of  in  raising  a 
new  building.  But  if  the  materials  have  been  separated  from  the  house  or 
other  edifice  only  for  the  purpose  of  having  it  repaired  or  added  to,  and  with 
the  intention  of  replacing  them,  they  preserve  the  nature  of  immovables, 
and  are  considered  as  such."  Under  this  article,  brick  and  lumber  for  the 
first  time  collected  together  and  lying  around  convenient  to  be  used  as  the 
work  progressed,  intended  to  be  used  in  the  construction  of  an  edifice,  but 
never  having  been  so  used,  are  movables,  and  subject  to  execution  Aa  such. 
Beard  v.  Duralde,  23  La.  Ann.,  284   (1871). 

54 


CH.\P.  I.]  INTENTION.  *40 

tal  intention  by  the  owner  of  real  estate,  to  sever  and  remove 
fixtures  therefrom,  irrespective  of  acts  in  execution  thereof,  is 
insufficient  to  convert  such  fixtures  into  chattels.^ 

Testimony  on  the  part  of  the  party  making  the  annexation  of 
an  intention  on  his  part  at  the  time  thereof,  that  such  an- 

[Sleepers,  fastenings  and  materials  in  hand  for  the  repairing  of  a  rail- 
road and  engines  from  time  to  time  as  required,  are  not  immovable  by  des- 
tination, but  are  subject  to  seizure,  Wyatt  v.  Levis  &  K.  R.  R.  Co.,  6  Que. 
L.  E.,  213   (1880).]   • 

iBratton  v.  Clawson,  2  Strobh.  Law,  478  (1848);  3  Id.,  127;  Tate  v. 
Blackburne,  48  Miss.,  1  (1873),  where  such  fixtures  were  held  to  pass  by  a 
conveyance  of  the  land.  See  also  Rogers  v.  Brokaw,  25  N.  J.  Eq.,  496  (1875). 
[Towson  V.  Smith,  13  D.  C.  App.,  48,  57  (1898)  ;  Salter  v.  Sample,  71  111., 
430,  433  (1874)  ;  Kloess  v.  Katt,  40  111.  App.,  99,  100  (1891)  ;  Crum  v.  Hill, 
40  Iowa,  506,  507  (1875)  ;  Maginnis  v.  Union  Oil  Co.,  47  La.  Ann,,  1489, 
1493  (1895);  People  v.  Jones,  120  Mich.,  283,  284  (1899);  Miles  v.  Mc- 
Naughton,  111  Mich.,  350,  354  (1896)  ;  State  Sav.  Bank  v.  Kercheval,  65 
Mo.,  682,  686  (1877);  Tyler  v.  White,  68  Mo.  App.,  607,  611  (1897); 
Murray  v.  Bender,  125  Fed.,  705  (U.  S.  C.  C.  A.,  Mont.,  1903)  ;  Leonard  v, 
Clough,  133  N,  Y.,  292,  296  (1892),  overruling  14  N,  Y.  Supp.,  339  (1891)  ; 
Minhinniek  v.  Jolly,  29  Ont,,  238,  246  (1898);  aff'd  in  26  Ont,  App.,  42 
(1899);  see,  also,  Gunderson  v.  Swarthout,  104  Wis.,  186,  192  (1899). 
Where  a  land  owner  built  a  railroad  under  an  agreement  with  a  licensee  of 
the  land  that,  upon  payment  of  the  price,  it  might  be  removed  by  the 
licensee,  it  ia  not  such  a  delivery  of  the  railroad  as  to  make  it  subject  to 
execution  as  personal  property  in  the  possession  of  the  licensee.  Webster 
Lumber  Co.  v.  Keystone  Lumber  Co.,  51  W.  Va.,  545  (1902).  Stone,  which 
has  been  gathered  and  placed  in  rows  to  enable  land  to  be  cultivated,  is  not 
a  conversion  of  it  into  chattels,  Ellis  v.  Wren,  84  Ky.,  254  (1886).]  Biit 
a  stone  split  out  and  slightly  removed  from  its  original  connection  or  posi- 
tion in  the  ledge,  and  propped  uj)  for  the  purpose  and  with  the  intention  on 
the  part  of  the  owner  of  the  farm  of  removing  it  from  the  farm,  and  using . 
in  in  preparing  a  tomb,  vnll  not  pass  by  a  conveyance  of  the  land.  It  would 
bo  "governed  by  the  same  principles  that  are  applicable  to  timber,  fence 
rails,  and  the  like,  that  have  been  removed  from  tho  freehold  in  fact,  but 
remain  upon  the  premises  for  the  purpose  of  being  used  there  in  the  con- 
struction of  fences,  etc.;  and  if  on  tho  land  at  the  time  the  premises  are  con- 
veyed they  will  pass  by  the  deed;  but  if  they  are  not  for  the  purpose  of 
being  used  upon  the  premises,  but  to  be  removed  elsewhere,  then  they  do 
not  pass  by  the  deed."  *  *  *  *  "As  there  was  nothing  about  the 
stone  or  the  position  in  which  it  was  placed,  to  indicate  tlic  use  to  which 
it  was  to  be  put,  whether  for  fencing  or  underpinning,  or  the  like,  upon  the 
premises,  or  for  use  elsewhere,  it  was  a  proper  subject  of  explanation  be- 
tween the  plaintiff  and  Wallace  at  the  time  the  deed  was  executed,  and  such 
explanation    might  well   bo  by   parol;    it   was   not   an  exception   of   that 


55 


*41  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

[*4:1]  *nexatiou  should  be  only  temporary,  and  to  remove  the 
article  in  question  at  some  future  time,  such  intention  being 
secret,  inchoate,  and  not  expressed  by  words  or  acts  indicative 
thereof,  is  inadmissible  as  against  a  grantee  or  mortgagee  of  the 
land,  to  rebut  the  evidence  afforded  by  acts  and  circumstances 
of  an  intention  on  his  part  to  make  such  annexation  permanent;' 
and  conversely,  testimony  as  to  the  secret,  inchoate,  unexecuted 
intention  of  the  owner  of  the  freehold  unaccompanying  the  act 
of  severance  to  substitute  different  fixtures  for  fixtures  tem- 
porarily severed  for  convenience  during  the  process  of  repairs, 
is  inadmissible  to  vary  their  nature  or  deprive  them  of  the 
character  of  fixtures.^     In  order  to  give  effect  to  the  intention 

•which  would  otherwise  pass  by  the  deed,  but  the  giving  to  Wallace  a  knowl- 
edge of  facts  showing  that  it  would  not  pass,  and  thus  avoiding  all  mis- 
understanding or  controversy  about  it  in  the  future.  The  fact  that  such 
information  was  accompanied  by  an  exception  in  form,  does  not  vary  the 
principle."    Noble  v,  Sylvester,  42  Vt.,  146  (1869). 

1  Treadway  v.  Sharon,  7  Nev.,  37  (1871) ;  Tate  v.  Blaekburne,  48  Miss.,  1, 
6  (1873)  ;  "Such  an  intention  must  be  made  out  by  acts,  words  and  circum- 
stances. *  *  *  An  unexpressed  mental  intention  is  a  myth;  it  is  intangi- 
ble; it  is  subject  to  no  law,  and  cannot  be  tried.  To  give  it  efficacy  would 
invite  to  frauds,  and  perjury,  which  no  court  or  criminal  code  could  reach, 
as  the  evil  minded  could  defy  the  ingenuity  of  legislators  and  of  grand 
juries."  See,  also,  Snedeker  v.  Warring,  12  N.  Y.,  178  (1854).  [West 
Coast  Lumber  Co.  v.  Apfield,  86  Cal.,  335  (1890)  ;  Matzon  v.  Griffin,  78  111., 
477,  480  (1875);  Davis  v.  Mugan,  56  Mo.  App.,  311,  318  (1893);  New 
York  Life  Ins.  Co.  v.  Allison,  107  Fed.,  179,  186  (U.  S.  C.  C.  A.,  N.  Y., 
1901);  Cosgrove  v.  Troescher,  62  App.  Div.,  123,  126  (N.  Y.,  1901); 
Phoenix  Mills  v.  Miller,  4  N.  Y.  St.  E.,  787,  791  (1886);  Burkhardt  v. 
Hopple,  6  Ohio  Dec,  127,  129  (1897);  Copp  v.  Swift,  26  S.~W.,  438  (Tex. 
.Civ.  App.,  1894)  ;  Stack  v.  Eaton,  4  Ont.  Law,  335,  338  (1902) ;  see,  also, 
Fisk  V.  Peoples'  Bank,  14  Colo.  App.,  21,  27  (1899);  Bradley  v.  Kitchie, 
12  Pa.  Dist.,  658,  660  (1903).]  See,  however,  Eogers  v.  Brokaw,  25  N.  J, 
Eq.,  496  (1875). 

aWadleigh  v.  Janvrin,  41  N.  H.,  503  (1860).  The  question  as  to  the 
intention  with  which  an  annexation  is  made,  is  one  of  fact  for  the  jury. 
Seeger  v.  Pettit,  77  Penn.  St.,  437,  441  (1875)  ;  and  evidence  that  a  firm, 
the  tenants,  treated  the  fixtures  in  question  as  their  own  property,  and 
included  them  among  their  assets,  was  hold  competent  on  such  question  of 
intention  in  Seeger  v.  Pettit  (supra).  [See  Wentworth  v.  Woods  Co.,  163 
Mass.,  28,  33  (1895);  Merchants'  Nat.  Bank  v.  Stanton.  59  Minn  532, 
536  (1894)  ;  and,  post,  p.  *89.] 

[The  question  as  to  intention  is  for  the  jury.  Tillman  v.  DeLaey,  80  Ala., 
103,   107    (1885) ;    Traders  Bank   v.  First   Nat.   Bank,   6  Kan.   App.,   400 

56 


CHAP.  I.]  INTENTION.  *41 

(1897)  ;  Studley  v.  Ann  Arbor  Bank,  112  Mich.,  181,  185  (1897)  ;  Stevens  v, 
Eose,  69  Mch.,  259,  267  (1888);  Brownell  v.  Fuller,  60  Neb.,  558,  546 
(1900)  ;  Phoenix  Mils  v.  Miller,  4  N.  Y.  St.  R.,  787,  791  (1886)  ;  Alberson 
V.  Elk  Creek  Min.  Co.,  39  Ore.,  552,  559  (1901);  Harrisburg  Light  Co.  v. 
Goodman,  129  Pa.  St.,  206  (1889)  ;  SilUman  v.  Whitmer,  11  Pa.  Super., 
243,  257  (1899),  aflf'd  196  Pa.  St.,  363,  365  (1900);  Copp  v.  Swift,  26  S. 
W.,  438  (Tex,  Civ.  App.,  1894)  ;  Fowler  v.  Fowler,  15  N.  Brunsw.,  488,  491 
(1875);  see,  also,  Pfluger  v.  Carmichael,  54  App.  Div.,  153,  154  (N.  Y., 
1900) ;  and,  ante,  p.  *24,  and,  post,  p.  *94.  But  where  there  is  a  contract, 
this  would  determine  the  intention  of  the  parties,  which  it  is  the  duty  of 
the  court  to  construe.  Gulf,  C.  &  S.  E  'y  Co.  v.  Dunman,  35  S.  W.,  947,  948 
(Tex.  Civ.  App.,  1896).] 

[Where  all  parties  have  passed  title  to  an  engine  and  boiler  by  bill  of 
sale  and  chattel  mortgage,  it  shows  intent  to  regard  them  as  personal  prop- 
erty. Lansing  Works  v.  Wilbur,  111  Mich.,  413,  420;  Alberson  v.  Elk 
Creek  Min.  Co.,  39  Ore.,  552,  559   (1901).] 

[Where  the  grantor  of  a  house  claims  pay  for  articles  therein  over  and 
above  the  price  of  the  house,  and  finally  gives  them  to  the  grantee  as  an 
inducement  to  buy  the  land,  it  is  clear  evidence  that  the  grantor  intended 
that  the  articles  should  not  be  a  part  of  the  realty;  and  it  is  not  evidence 
to  the  contrary  that,  in  a  prior  mortgage  of  the  house,  it  was  agreed  that 
the  articles  should  be  covered  by  the  mortgage.  Leg^-^.  Shakespeare,  10 
Montg.  Co.   (Pa.),  171   (1893).]  ^ 

[Statements  by  the  purchaser  of  a  sawmill  that  he  wanted  one  that  he 
could  move,  as  he  intended  to  move  it  several  times,  and  his  subsequent 
statement  that  he  intended  to  move  it,  is  admissible.  Benedict  v.  Marsh, 
127  Pa.   St.,   309    (1889).] 

[Where  the  petition  alleges  that  a  building  and  machinery,  after  purchase 
thereof,  were  removed  by  the  plaintiff,  the  land  owner,  from  one  county  to 
another,  it  must  be  inferred  they  are  movable  structures,  capable  of  being 
transferred  without  injury  to  themselves  or  to  the  land.  Harkey  v,  Cain, 
69    Tex.,    146,    150    (1887).] 

[An  agreement,  cotemporaneous  with  a  mortgage,  that  the  mortgage 
was  to  cover  certain  machinery  to  be  placed  upon  the  land,  may  be  proven 
to  show  with  what  intent  the  machinery  was  placed  upon  the  land.  Seed- 
house   V.   Broward,   34  Fla.,   509,   524    (1894).] 

[Where  a  mortgage  of  a  building  is  written  upon  a  blank  intended  for  a 
real  estate  mortgage,  and  the  grantor  styles  himself  an  "unmarried"  man, 
the  intention  to  treat  the  building  as  real  estate  is  clear.  Wilds  v.  Ward, 
138  Ind.,  373,  379  (1894).] 

[Where  copartners  purchase  land  for  a  brick  yard,  and  purchase  ma- 
chinery necessary  for  the  manufacture  of  brick,  nud  until  tliey  unite  the  two 
they  were  not  prepared  to  proceed,  it  is  evidence  of  an  intention  to  make 
the  machinery  a  permanent  annexation.  Fisk  v.  Peoples'  Bank,  14  Colo. 
App.,  21,  26    (1899).] 

[Where,  by  agreement  between  the  mortgagors  and  the  mortgagee  of 
a  mill,  the  former  were  to  place  a  certain  amount  of  machinery  in  the 

57 


*41  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

mill,  which  was  done,  and  one  of  the  mortgagors  sold  his  interest  in  the 
mill  and  machinery  to  the  other,  subject  to  the  mortgage,  an  intention  is 
shown  to  make  such  machinery  a  part  of  the  realty.  Muehling  v.  Muehling, 
181  Pa.  St.,  483,  491   (1897).] 

[Where  money  is  loaned  for  the  purpose  of  erecting  a  tack  factory  and 
placing  machinery  therein,  and  such  machinery  has  passed  without  question 
under  various  conveyances  and  mortgages  of  the  realty,  it  shows  an  intent  to 
regard  the  machinery  as  a  fixture  although  capable  of  being  removed  without 
injury  to  the  building.  Homestead  Land  Co.  v.  Becker,  96  Wis.,  206,  210 
(1897).] 

[If  the  party  owning  land  upon  which  a  building  is  erected,  moves  the 
building  to  other  land  owned  by  him,  it  is  some  evidence  of  unity  of  title 
to  the  land  and  building,  showing  an  intent,  when  the  building  was  first 
erected,  to  make  it  a  fixture.    Byrnes  v.  Palmer,  113  Mich.,  17,  19  (1897).] 

[Where  the  owner  of  land,  who  thinks  that  there  is  a  cloud  upon  his 
title,  erects  a  building  which  he  intends  shall  be  permanent  if  his  title 
is  good,  it  shows  intent  to  make  the  structure  a  part  of  the  realty.  Miles 
V.  McNaughton,   111   Mich.,   350,  354    (1896).] 

[Intent  is  shown  by  a  verbal  -promise  of  a  purchaser  of  land  under  con- 
tract, as  an  inducement  thereto,  that  he  would  build  a  shop  and  put  ma- 
chinery therein.     Taylor  v.  Collins,  51  Wis.,  123,  129    (1881).] 

[The  fact  that  fixtures  would  not  fit  nor  be  adapted  to  any  other  build- 
ing or  store  room  would  be  pertinent,  but  not  conclusive  of  an  intention  to 
make  them  a  part  of  the  realty.  McLean  v.  Palmer,  2  Luz.  Leg.  Eeg.  E., 
349,  354  (1882).] 

[Insuring  fixtures  separately  from  building  is  not  in  itself  suflScient 
to  indicate  an  intention  to  consider  them  chattels.  McCausland  v.  McCallum, 
3  Ont.,  305,  309  (1883).] 

[The  fact  that  it  is  expected  in  time  to  supplant  the  machinery  in  a 
power-house  of  an  electric  railway,  with  improved  machinery,  and  that  pro- 
vision has  been  made  to  remove  it  without  injury,  does  not  change  its  char- 
acter as  real  estate  while  annexed.  Detroit  United  E'y  v.  Board  of  Com- 
missioners, 98  N.  W.,  997,  999  (Mich.,  1904).] 

[The  fact  that  the  land  and  machinery  were  acquired  by  a  mortgagor  at 
the  same  time,  -  and  without  any  other  instrument  than  the  deed  to  the 
land,  and  their  use  for  many  years  in  the  same  place,  does  not  change  the 
legal  character  of  such  machines.  Keeler  v.  Keeler.  31  N.  J.  Eq.,  181,  193 
(1879).] 

[Where  fixtures  are  so  afiSxed  to  the  freehold  that  they  can  not  be  removed 
without  destroying  the  character  of  the  premises,  the  fact  that  the  mort- 
gagor may,  on  other  occasions,  have  given  chattel  mortgages  thereon,  does 
not  show  an  intention  that  they  are  not  to  pass  as  part  of  the  realty.  Car- 
son v.  Simpson,  25  Ont.,  385   (1894).] 

[That  a  mortgagor  has  filed  a  declaration  of  homestead  would  not  prove 
the  intention  with  which  articles  were  aflSxed;  nor  would  the  fact  that  the 
house  would  be  of  less  value  if  such  articles  were  removed  from  it.  Phila- 
delphia Mort.  Co.  V.  Miller,  20  Wash.,  607  (1889).] 

58 


CHAP.  I.]  INTENTION.  *41 

of  a  party  not  to  make  an  erection  a  permanent  accession  to  the 
realty,  the  person  making  the  improvement  must  have  the  right 
to  determine  whether  or  not  the  erection  shall  become  a  part 
of  the  realty;  and  if,  as  between  himself  and  the  owner  of  the 
soil,  he  has  no  right  to  erect  the  same  as  property  separate  and 
distinct  from  the  freehold,  an  intention  to  do  so,  no  matter  how 
clearly  manifested,  is  of  no  avail.^ 

3  Ogden  V.  Stock,  34  111.,  522  (1864).  In  this  ease  the  purchaser  of  a  city- 
lot  under  a  contract  of  purchase,  providing  that  upon  default  in  any  of 
the  payments  the  vendor  might  terminate  the  agreement  and  treat  the 
vendee,  his  representatives  or  assigns  as  tenants  at  will  at  a  specified  rent, 
while  owing  the  greater  portion  of  the  purchase  money,  in  default  for  pay- 
ments matured,  and  paying  no  rent  for  his  occupation  of  the  premises,  con- 
jointly with  defendant  under  an  agreement  that  each  should  own  half 
thereof,  erected  thereon  a  dwelling  house  placed  upon  blocks  resting  on 
boards  lying  on  the  ground,  and  afterwards  sold  his  share  to  defendant, 
who  removed  it  from  the  lot;  and  it  was  held,  that  while  in  the  enjoyment  of 
the  property  under  such  circumstances,  he  could  not  honestly  assert  that  he 
did  not  intend  to  perform  his  contract,  and  that  he  intended  the  erection 
on  the  lot  as  property  separate  from  the  freehold,  and  therefore  neither 
he  nor  his  vendee  could  rightfully  remove  it  from  the  premises. 

So,  where  one  enters  upon  the  land  of  another  as  tenant  of  one  claiming 
to  have  a  tax  title  to  the  land,  and  under  a  claim  of  right,  adverse  to  the 
true  owner,  erects  a  building  thereon,  to  be  occupied  by  him  as  a  dwelling 
as  a  part  of  his  adverse  enjoyment  of  the  premises,  he  has  no  right  to 
remove  such  building  as  against  the  true  owner  of  the  land,  although  the 
building  is  constructed  of  wood,  and  set  upon  small  posts  set  up  and 
braced  upon  planks  laid  upon  the  surface  of  the  ground,  and  though  the 
foundation  is  not  let  into  the  soil.  The  pretended  owner  of  the  tax  title 
not  having  by  reason  of  his  intention  at  some  future  day  to  remove  it,  the 
right  as  against  the  true  owner  to  remove  such  a  building  having  in  all 
other  respects  the  character  of  a  fixture,  his  tenant  cannot  remove  it  by 
reason  of  such  intention;  such  previous  intention  to  remove,  is,  in  the  case 
of  a  trespasser,  inadmissible  for  the  purpose  of  changing  the  character 
of  the  property  from  real  to  personal.  Neither  does  it  make  a  difference, 
that,  as  against  his  landlord,  by  the  custom  of  the  city  of  Milwaukee, 
such  buildings  erected  by  tenants  on  leased  lots  are  considered  personal 
property,  and  in  the  absence  of  restrictions  in  the  lease,  are  removable 
on  its  termination.  Iluebschmann  v.  McHenry,  29  Wis.,  65.5  (1872).  See, 
also.  Smith  v.  Moore,  26  111.,  .392  (1861);  and  a  further  consideration  of 
the  subject  in  relation  to  erections  alieno  solo,  vendor  and  vendee,  mortgagor 
and  mortgagee.  [Hereford  v.  Pusch,  68  Pac,  547  (Ariz.,  1902);  Wright 
V.  DuBignon,  114  Ga.,  76.5,  771  (1901);  Henderson  v.  Ownby,  56  Tex., 
647,  649    (1882);   Gulf,  C.  &  S.  R'y  Co.  v.  Dunman,   35  S.  W.,  947,  948 

59 


*42  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

[*42]  *Inasmiicli  as  it  requires  a  positive  act  on  the  part  of  the 
person  making  the  annexation  to  change  the  nature  and  legal 
qualities  of  a  chattel  into  those  of  a  fixture,  it  is  quite  generally 
considered  that  the  intention  to  make  the  article  a  permanent 
accession  to  the  realty,  must  affirmatively  and  plainly  appear; 
and  if  it  be  a  matter  left  in  doubt  or  uncertainty,  the  legal 
qualities  of  the  article  are  not  changed,  and  the  article  must  be 
deemed  a  chattel.^  But  the  fact  that  the  owner  of  the  fee  had 
no  special  intent  as  to  making  the  articles  annexed  a  part  of 
the  freehold,  there  being  no  intention  as  to  removing  them  at 
any  future  time,  is  immaterial,  where  they  are  actually  and 
firmly  annexed  to  the  freehold  in  the  usual  manner,  and  adapted 
[*43]  to  use  in  that  position,  though  capable  of  removal  *with- 
out  injury  to  the  building  or  themselves.  The  facts  in  such  a 
case  furnish  evidence  of  intent  to  make  a  part  of  the  freehold.^ 

(Tex.  Civ.  App.,  1896)  ;  Allan  v.  Eowe,  1  N.  Brunsw.  (Trueman),  41, 
48   (1894)  ;  see,  also,  Hobson  v.  Gorringe  [1897],  1  Ch.,  182,  192.] 

[Conversely,  an  intention  to  make  an  article  a  part  of  the  realty  is  of 
no  avail  against  the  owner  of  the  article  who  has  not  given  his  consent 
thereto.  Central  Branch  K.  E.  Co.  v.  Fritz,  20  Kan.,  430,  435  (1878); 
Case  Mfg.  Co.  v.  Garven,  45  Ohio  St.,  289,  301  (1887).] 

1  Teaff  V.  Hewitt,  1  Ohio  St.,  511,  533  (1853) ;  Fortman  v.  Goepper,  14 
Ohio  St.,  558,  567  (1863)  ;  Hunt  v.  Mullanphy,  1  Mo.,  508  (1825)  ;  Weath- 
ersby  v.  Sleeper,  42  Miss.,  732  (1869);  Hill  v.  Wentworth,  28  Vt.,  428, 
437  (1856)  ;  Cole  v.  Eoach,  37  Tex.,  413,  417  (1872)  ;  Capen  v.  Peckham, 
35  Conn.,  88,  95  (1868).  As  to  the  amount  of  evidence  to  establish  this 
point,  and  especially  as  regards  the  subject  of  annexation,  there  is,  as  has 
been  seen,  a  great  diversity  of  opinion.  See  ante,  Annexation.  [Langston 
v.  State,  96  Ala.,  44,  47  (1891);  Tillman  v.  DeLacy,  80  Ala.,  103,  107 
(1885);  Morey  v.  Hoyt,  62  Conn.,  542,  553  (1893);  Johnson  v.  Mosher, 
82  Iowa,  29,  32  (1891)  ;  Clore  v.  Lambert,  78  Ky.,  224,  232  (1879)  ;  Hay- 
ford  V.  Wentworth,  97  Me.,  347,  350  (1903)  ;  Allen  v.  Woodard,  125 
Mass.,  400,  402  (1878) ;  Schneider  v,  Schneider,  6  Ohio  Dec,  106,  107 
(1897);  Dowall  v.  Miln  (1874),  1  Sess.  Cas.,  4th  Ser.,  1180;  Keefer  v, 
Merrill,  6  Up.  Can.  App.,  121  (1881);  Canada  Sav,  Co.  v.  Merchants'  Bank, 
3  Man.,  285  (1886)  ;  see,  also.  Hacker  v,  Munroe,  176  111.,  384,  395  (1898) ; 
Hillebrand  v.  Nelson,  95  N.  W.,  1068,  1070  (Neb.,  1901);  Globe  Marble 
Co.  v.  Quinn,  76  N.  Y.,  23   (1879).] 

2Voorhees  v.  McGinnis,  48  N.  Y.,  278  (1872).  [Towson  v.  Smith,  13 
App.,  D.  C,  48,  58  (1898);  Seedhouse  v.  Broward,  34  Fla.,  509,  524 
(1894);  Calumet  Iron  Co.  v.  Lathrop,  36  111.  App.,  249,  256  (1889);  West 
V.  Farmers'  Mut.  Ins.  Co.,  117  Iowa,  147,  151  (1902);  Maginnis  v.  Union 
Oil  Co.,  47  La.  Ann.,  1489,  1496  (1895)  ;  Feder  v.  Van  Winkle,  53  N.  J.  Eq., 

60 


CHAP.  I.]  INTENTION.  *43 

And  perhaps  it  may  also  be  stated  as  a  rule  supported  by  the 
weight  of  authority,  that  where  an  article  is  actually  annexed 
to  the  land,  it  will  be  presumed  to  have  been  so  attached  with 
a  view  to  the  permanent  improvement  or  beneficial  enjoyment 
of  the  freehold,  and  will  be  deemed  a  part  of  the  realty,  unless 
the  circumstances  are  such  as  to  show  that  it  was  intended  all 
along  to  continue  a  chattel. ^ 

370,  376  (1895)  ;  Canning  v.  Owen,  22  E.  I.,  624,  629  (1901)  ;  Jones  v.  Bull, 
85  Tex.,  136,  140  (1892)  ;  see,  also,  "White  v.  Cincinnati,  K.  &  M.  E.  E.,  71 
N,  E.,  276,  278  (Ind.  App.,  1904);  Atlantic  Trust  Co.  v.  Atlantic  City 
Laundry  Co.,  64  N.  J.  Eq.,  140,  145  (1902)  ;  Lee  v.  Hubschmidt  Bldg.  Co., 
55  N.  J.  Eq.,  623,  626  (1897)  ;  Knickerbocker  Trust  Co.  v.  Penn.  Cordage 
Co.,  58  Atl.,  409,  410  (N.  J.,  1904).] 

[Courts  will  take  judicial  notice  that  certain  machinery  is  usually  at- 
tached so  as  to  become  part  of  the  realty.  Wickes  v.  Hill,  115  Mich.,  333, 
339   (1897).] 

3  See  Potter  v.  Cromwell,  40  N.  Y.,  287  (1869);  Holland  v.  Hodgson, 
L.  E.  7  C.  P.,  328,  335  (1872)  ante,  p.  30;  Lancaster  v.  Eve,  5  C.  B.  (N. 
S.),  717  (1859);  Wilde  v.  Waters,  16  C.  B.,  637  (1855).  See,  also,  Tifft 
V.  Horton,  53  N.  Y.,  377,  380  (1873)  ;  Brearley  v.  Cox,  24  N.  J.  Law,  287, 
290  (1854);  Ogden  v.  Stock,  34  111.,  522,  527  (1864);  Baldwin  v.  Walker, 
21  Conn.,  168  (1851) ;  and  the  cases  cited  post,  in  Ch.  3.  See,  however, 
ante,  Annexation,  and  cases  cited.  [See,  also,  post,  p.  *294.  Johnston  v. 
Phila.  Mort,  Co.,  129  Ala.,  515,  522  (1900)  ;  Sword  v.  Low,  122  111.,  487, 
500  (1887);  Docking  v.  Frazell,  34  Kan.,  29,  34  (1885);  Hopewell  Mills 
V.  Taunton  Bank,  150  Mass.,  519,  521  (1890);  Schuchardt  v.  Mayor  of 
New  York,  53  N.  Y.,  203,  208  (1873)  ;  Morotock  Ins.  Co.  v.  Eodefer,  92 
Va.,  747,  753  (1896);  Lyon  v.  London  City  Bank  [1903],  2  K.  B.,  135, 
139;  Stack  v.  Eaton,  4  Ont.  Law,  335,  338  (1902);  Allan  v.  Eowe,  1  N. 
lirunsw.  Eq,  (Trueman),  41,  51  (1894);  see,  also,  Cook  v.  Condon,  6  Kan. 
App.,  574  (1897);  Clark  v.  MfKnight,  25  Tex.  Civ.  Ai)p.,  60,  63  (1901); 
Eeynolds  v.  Ashby  [1903],  1  K.  B.,  87.] 

[A  rule  seems  to  obtain  in  Ohio  and  some  other  states,  to  regard  the 
motive  power  in  a  mill,  with  the  means  of  communicating  such  power,  al- 
though the  annexation  may  be  slight,  as  a  part  of  the  realty,  and  to  hold 
that  the  machinery  propelled  thoroby  is  personalty.  "Motive  power  is 
generally  more  closely  anncx('<l  to  the  frocliold  and  of  a  more  permanent 
nature,  as  the  power  furnished  by  it  may  be  adapted  to  the  propulsion  of 
the  machinery  of  a  variety  of  mills  without  any  substantial  change  in 
the  motive  power  itself  or  in  the  building  other  than  by  substituting  one 
kind  of  machinery  for  another;  wliilHt,  tlio  machinery  that  is  pr(>pcllc(l 
has  more  of  the  general  character  of  personalty,  is  not  as  a  rule  so  closely 
annexed  to  the  freehold,  and  may  be  removed,  and  frequently  is,  from  one 
mill  to  another,  as  any  other  article  of  personalty;  and  is  more  properly 
'accessory  to  the  business'  carried   on  upon  the  realty  than  to  the  realty 


*-i4  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

In  some  cases  the  law  presumes,  from  the  relation  of  the 
parties,  that  annexations  to  the  realty  are  made  with  the  de- 
sign of  their  being  permanent.'*  The  presumption  as  to  the 
intent  with  which  annexations  are  made  to  the  realty,  vary, 
however,  according  to  the  relations  existing  between  the  parties, 
as  being  landlord  and  tenant,  vendor  and  vendee,  etc.,  and  will 
be  considered  in  the  course  of  the  work  when  those  relations 
respectively  come  under  consideration.  The  subjects  of  the 
nature  of  the  thing  annexed,  its  mode  of  annexation,  etc.,  will 
also  be  hereinafter  considered  in  the  course  of  the  work. 

V.     Severance. 

With  regard  to  what  constitutes  a  severance  sufficient  to  con- 
vert an  article  from  a  fixture  to  a  mere  chattel,  it  is  to  be  ob- 
served that  the  mere  act  of  physical  severance  is  not  always 
sufficient  to  accomplish  that  end.  Thus,  a  mere  accidental  sev- 
erance, or  a  severance  for  a  temporary  purpose,  as  for  the  sake 
of  repairs,  etc.,  does  not  deprive  a  fixture  of  its  character  as  a 
[*44]  *part  of  the  realty .^    In  order  to  efi:'ect  that  purpose,  the 

itself.  ******  It  may,  however,  be  admitted  that  the  distinc- 
tion between  the  motive  power  of  a  factory  and  the  machines  driven  by  it 
is  somewhat  arbitrary;  still  it  is  one  based  upon  a  physical  difference,  easily 
perceived,  and  is  no  more  illogical  than  many  distinctions  to  be  found  in 
other  branches  of  the  law."  Case  Mfg.  Co.  v.  Garven,  45  Ohio  St.,  289 
(1887),  modifying  Garven  v.  Hogue,  14  Wkly.  Cin.  Law  Bui.,  175  (C.  C, 
1885)  ;  Commissioners  of  Anne  Arundel  County  v.  Baltimore  Sugar  Co., 
58  Atl.,  211,  212  (Md.,  1904)  ;  see,  also,  Steed  v.  Knowles,  79  Ala.,  446, 
448  (1885)  ;  Hart  v.  Sheldon,  41  Supr.  Ct.  (34  Hun.),  38,  44  (N.  Y.,  1884). 
In  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57,  64  (1876),  the  rule  making 
a  distinction  between  the  motive  power  and  the  machinery  propelled  there- 
by, is  not  approved.] 

4  See  Smith  v.  Moore,  26  111.,  394  (1861),  and  ante,  p.  *41,  note  (3). 
[Davis  v.  Eastham,  4  Ky.  Law  E.,  850,  852  (1883)  ;  Albert  v.  Uhrich,  180 
Pa.  St.,  283  (1897);  Furrh  v.  Winston,  66  Tex.,  521,  526  (1886).] 

5  See  Wystow's  case,  14  Hen.  8,  25  b  (1522),  cited  ante,  p.  *33;  Wadleigh 
V.  .lanvrin,  41  N.  H.,  503  (1860);  McLaughlin  v.  .Tohnson,  46  III.,  163 
(1867)  ;  Goodrich  v.  Jones,  2  Hill,  142  (1841)  ;  Rogers  v.  Gilinger,  30  Penn. 
St.,  185  (1858),  cited  post  Ch.  9;  Congregational  Society  of  Dubuque  v. 
Fleming,  11  Iowa,  533  (1861).  [Steed  v.  Knowles,  79  Ala.,  446,  448 
(1885);  Guernsey  v.  Phinizy,  113  Ga.,  898,  900  (1901);  Wilmarth  v.  Ban- 
croft, 92  Mass.,  348,  349  (1865)  ;  Hannibal  &  St.  Jo.  R.  R.  Co.  v.  Crawford, 
68  Mo.,  80,  82    (1878);   Leidy  v.  Proctor,  97  Pa.  St.,  486,  488   (1881); 

62 


CHAP,  I.]  SEVERANCE.  *44 

act  of  severance  must,  as  it  seems,  not  only  be  done  by  one  having 
the  right  to  do  it,^  but  must  also  be  done  with  the  intention  of 

Patton  V.  Moore,  16  W.  Va.,  428,  441  (1880) ;  Lewis  v.  Eosler,  16  W.  Va., 
333,  334  (1880) ;  Grant  v.  Wilson,  17  Up.  Can.  Q.  B.,  144,  147.] 

See,  also,  Goddard  v.  Bolster,  6  Me.,  427  (1830) ;  Bainway  v.  Cobb,  99 
Mass.,  457  (1868);  Heaton  v.  Findlay,  12  Penn.  St.,  304  (1849).  [Grim- 
shawe  V.  Burnham,  25  Up.  Can.  Q.  B.,  147   (1865)  ;  and,  post,  p.  *304.] 

See,  however,  Buckout  v.  Swift,  27  Cal.,  433  (1865). 

See  the  statutory  regulations  on  the  subject  in  Louisiana  (C.  C,  Art. 
468),  considered  in  Beard  v.  Duralde,  23  La.  Ann.,  284  (1871);  Key  v. 
Woolfolk,  6  Rob.,  424  (1844);  Nimmo  v.  Allen,  2  La.  Ann.,  451   (1847). 

[In  Leidy  v.  Proctor,  97  Pa.  St.,  486,  488  (1881),  it  is  said  that  fallen 
timber  is  not  severed  until  the  owner  converts  it  into  logs;  but  in  Ee  Ains- 
lie  (1885),  30  Ch.  D.,  485,  overruUng  (1884)  28  Ch.  D.,  89,  92,  it  is  said 
that  a  tree  severed  from  the  soil  by  a  storm  is  personalty.  In  regard  to 
the  question  when  the  severance  is  complete,  Lord  Chan.  Halsbury  said: 
"If  a  tree  is  so  fixed  to  the  ground  that  it  would  be  necessary  to  apply 
some  new  force  in  order  to  remove  it  from  the  ground,  then  it  would  be 
attached  to  the  soil.  If  the  roots  were  broken  in  the  soil  so  that  the  tree 
and  its  roots  were  in  truth  and  in  fact  severed  from  each  other,  then, 
although  some  of  the  broken  parts  of  the  tree  might  still  remain  covered 
with  earth,  I  should  say  that  it  would  be  in  truth  and  in  fact  severed, 
although  to  the  casual  observer  it  would  seem  to  have  some  of  the  roots  in 
the  ground.  *****  if  the  connection  between  the  soil  and  tree 
was  some  minute  filament  *****  then  such  tree  was  not  affixed 
to  the  soil  at  all;"  and,  according  to  Lindley,  L.  J.  (1885),  30  Ch.  D., 
48.5,  488,  the  burden  of  showing  that  trees  are  severed  by  a  storm  is  upon 
those  so  claiming.] 

[Where  taxes  were  a  lien  upon  a  flouring  mill,  which  afterwards  burned 
down,  the  lien  did  not  attach  to  fixtures  so  severed.  State  v.  Goodnow,  80 
Mo.,  271,  275   (1883).] 

[It  seems  that  trade-fixtures  severed  by  fire  are  liable  to  be  taken  in 
execution  though  they  would   not  be  while  annexed.     Donkin   v.   Crombie, 

11  Up.  Can.,  C.  P.,  601,  605.] 

[Where  a  rail  fence,  on  account  of  its  ago  and  decay,  is  no  longer 
fit  for  a  fence,  and  ceases  to  be  used  as  such,  it  ceases  to  be  a  part  of  the 
realty.  Fullington  v.  Goodwin,  57  Vt.,  641  (1885).  See,  further,  as  to 
severance  by  decay,  post,  p.  *223.] 

oSee  Ogden  v.  Stock,  34  111.,  522  (1864);  Huebschmann  v.  McIIenry,  29 
Wis.,  655  (1872),  cited  ante.  These  caess  may  not  come  up  to  the  point 
stated  in  the  text,  but  servo  to  throw  some  light  upon  the  question. 

See,  also,  Gray  v.  Holdship,  17  S.  &  R.,  413  (1828);  Heaton  v.  Findlay, 

12  Ponn.  St.,  307  (1849)  ;  Hemcnway  v.  Cutler,  51  Me.,  407  (1863)  ;  Jewett 
V.  Whitney,  43  Id.,  242  (1857);  Grover  v.  Howard,  31  Id.,  546  (1850). 
[Green  v.  Chicago,  R.  L  &  P.  R.  R.  Co.,  8  Kan.  App.,  611,  614  (1899); 
Wylie  V.  Grundysen,  51  Minn.,  360,  362  (1892) ;  Freeman  v.  Lynch,  8  Neb., 

63 


•44  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

converting  the  article  into  the  state  of  a  chattel,"^  though,  if  the 
severance  has  been  made  by  a  stranger,  or  one  not  having  the 
right  so  to  do,  the  owner  of  the  freehold  may  of  course  elect 
to  consider  the  things  severed  as  personalty,  as  by  bringing  re- 
plevin, trespass  de  honis  asportatis,  or  trover  for  their  conver- 
sion.8 

192  (1879);  Stagg  v.  Piland,  31  Tex.  Civ.  App.,  245,  247  (1903);  and 
see  Tucker  v.  Linger  (1883),  8  App.  Cas.,  508,  as  to  flints  ploughed  up  by 
a   tenant.] 

[An  orphans'  court  has  no  power  to  sever  fixtures,  even  though  it  might 
be  for  the  benefit  of  the  estate.  Walter  Est.,  10  Luz.  Leg.  Reg.  R.,  221 
(1899).] 

"See  the  cases  cited  in  note  (i)  supra;  also,  Bainway  v.  Cobb,  99  Mass., 
457  (1868).  [Lewis  v.  Rosier,  16  W.  Va.,  333,  343  (1880);  see,  also,  Bacon 
V,  Lewis,  33  Can.  Law  J.,  680,  687   (1897).] 

[Where  the  parties  to  a  contract  of  sale  of  land,  pending  a  dispute  as  to 
whether  an  engine  and  mining  machinery  thereon  constitute  a  part  of  the 
land,  mutually  agree  to  a  conversion  into  money  to  prevent  spoliation 
thereof,  the  right  of  the  party  who  was  entitled  to  them  aa  fixtures  is  not 
affected.     Moore  v,  Valentine,  77  N.  C,  188,  192  (1877).] 

[Where  a  purchaser  of  stones  from  the  owner  of  the  soil  removes  them 
from  the  walls  and  fields,  and  piles  them  upon  another  portion  of  the  farm, 
they  are  severed  from  the  soil,  and  become  personal  property  as  against 
a  grantee  of  the  farm,     Fulton  v,  Norton,  64  Me.,  410    (1875).] 

[Where  a  creditor  has  seized  land  upon  which  are  growing  crops,  and  has, 
through  the  sheriff,  gathered  and  stored  the  crops,  the  character  of  the 
property  is  not  changed;  and  if  the  creditor  under  the  same  mortgage, 
makes  a  second  seizure,  the  crops  remain  subject  thereto.  Townsend  v. 
Payne,  42  La.  Ann.,  909,  914  (1890).] 

Perhaps,  however,  where  the  severance  is  by  the  owner  of  the  freehold, 
in  the  absence  of  evidence  to  the  contrary,  an  intention  to  convert  into 
the  state  of  a  chattel  may  be  presumed,  which  may  perhaps  explain  many 
cases  where  the  simple  act  of  severance  by  the  owner  of  the  land  has  been 
held  to  convert  the  thing  severed  into  a  chattel.  See  Bliss  v.  Misner,  4 
N.  Y.  Supreme  Court  R.,  633  (1874). 

8  See  Rogers  v.  Gilinger,  30  Penn.  St.,  185  (1858)  ;  Riley  v.  Boston  Water 
Power  Co.,  11  Cush.,  11  (1853);  Strickland  v.  Parker,  54  Me.,  263  (1866); 
Laflin  v.  Griffiths,  35  Barb.,  58  (1860)  ;  post  Remedies.  [McNally  v.  Con- 
nolly, 70  Cal.,  3,  6  (1886)  ;  Webb  v.  Phillips,  54  U.  S.  App.,  54,  59  (U.  S. 
C.  C.  A.,  Ky.,  1897)  ;  Westgate  v.  Wixon,  128  Mass.,  304,  307  (1880)  ; 
Nelson  v.  Graff,  12  Fed.,  389  (U.  S.  C.  C,  Mich.,  1882)  ;  Gasco  v.  Marshall, 
7  Up.  Can.,  Q.  B.,  193,  196;  see,  also,  United  States  v.  Loughrey,  34  U.  S. 
App.,  575,  580  (U.  S.  C.  C,  Wis.,  1896)  ;  and,  post,  p.  *47.] 

[Where  a  trespasser  has  begun  to  move  a  stable,  it  is  personal  property 
so  far  as  he  is  concerned,  although  the  building,  at  the  time  of  the  service 

64 


CHAP.  I.]  SEVERANCE.  *45 

As  before  observed,  however,^a  mere  intention  on  the  part  of 
the  owner  of  the  land  to  sever  a  fixture,  without  any  correspond- 
ing action,  is  insufficient  to  convert  it  into  personal  property.^ 
And  therefore,  where  the  defendant  in  two  executions  caused 
one  of  them  to  be  levied  on  a  fixture  (a  cotton  gin),  and 
*gave  a  bond  for  its  delivery  to  the  sheriff,  the  gin  not  be-  [*45] 
ing  moved  from  the  rest  of  the  machinery,  this  was  held  not  to 
be  such  a  severance  as  to  prevent  the  gin  from  passing,  on  a 
sheriff's  sale  of  the  land  on  which  it  stood,  to  another  person, 
there  being  no  proof  of  notice  to  such  person  of  such  levy.^*^ 
Neither  can  a  creditor,  by  excepting  as  personal  property  a  build- 
ing on  the  premises  from  a  levy  on  the  land  on  which  it  is 
situated,  when  it  is,  in  fact,  a  part  of  the  realty,  change  the 
character  of  his  debtor's  estate,  and  convert  a  part  of  it  into 
personalty.^  ^ 

There  may,  however,  be  a  severance  in  law  without  a  sever- 
ance in  fact,  as  where  the  owner  of  the  freehold  grants  away 
the  trees,  etc.,  or  fixtures,  without  the  land,  or  sells  the  land, 
reserving  the  trees,  fixtures,  etc.,  from  the  sale,  in  both  of 
which  cases  the  fixtures,  though  in  fact  remaining  annexed  to 
the  soil,  become,  as  between  the  parties,  legally  separated  from 
the  realty,  and  hence  are  personal  property.^^    go,  fixtures  may, 

of  the  replevin  writ,  is  not  wholly  removed.  The  starting  of  the  building 
from  its  place  with  intent  to  remove  it  from  the  land,  is  a  severance.  Luce 
V.  Ames,   84  Maine,   133,   134   (1891).] 

»  See  ante,  p.  *i9. 

loBratton  v.  Clawson,  2  Strobh.  Law,  478  (1848);  s.  C,  3  id.,  127.  See, 
also,  Bank  of  Lansinj^burg  v.  Crary,  1  Barb.,  542  (1847).  [Budden  and 
Knight,  3  Que,  L.  R.,  273,  282  (1877)  ;  Batterman  v.  Albright,  122  N.  Y., 
484    (1890).] 

11  Hemenway  v.  Cutler,  51  Me.,  407  (1863) ;  Jewett  v.  Whitney,  43  id., 
242  (1857);  Grovcr  v.  Howard,  31  id.,  546  (1850).  [Cutting  v.  Pike,  21 
N.  H.,  347,  352   (1850).] 

[At  a  sale  under  a  power  in  a  deed  of  trust,  the  trustee  has  no  right  to 
sell  the  lots  without  the  fixfd  i)ermanent  improvements  placed  thereon  by 
the  mortgagor,  when  such  improvements  would  thereby  be  rendered  worth- 
less, and  where  the  lots  and  improvements  together  are  worth  several  times 
the  value  of  the  lots  alone.     Hill  v.  Shoemaker,  8  D.  C,  305,  311   (1874).] 

12  Sen  Brink  of  Lansingburg  v.  Crary,  1  Barb.,  542  (1847);  Davis  v. 
Emery,  61  Me.,  140  (1870);  Hoit  v.  Stratton  Mills,  54  N.  H.,  110  (1873); 
Sterling  v.  Baldwin,  42  Vt.,  306,  310  (1869);  Shaw  v.  Carboy,  13  Allen, 
462  (1866).     See,  also,  Nelson  v.  Nelson,  6  Gray,  385  (1856);  post  chap. 

6  65 


♦45  THE  LAW  OF  FIXTURES,  J  CHAP.  I. 

8,  as  to  growing  timber;  chap.  9,  as  to  iuflucnce  of  recording  acts.  [Rog- 
ers V.  Cox,  96  Ind.,  157,  160  (1884) ;  Meinke  v.  Nelson,  56  111.  App.,  269, 
271  (189-1) ;  Asher  Lumber  Co.  v.  Cornett,  22  Ky.  Law  R.,  569,  570  (1900) ; 
Tilford  V.  Dotson,  21  Ky.  Law  R.,  333,  335  (1899) ;  Lockeshan  v.  Miller, 
16  Ky.  Law  R.,  55  (1894)  ;  Hunter  v.  Burchett,  5  Ky.  Law  R.,  770  (Super., 
1884)  J  Magiuuis  v.  Union  Oil  Co.,  47  La.  Ann.,  1489,  1496  (1895);  Merrill 
V.  Wyman,  80  Me.,  491  (1888);  O'Brien  v.  Mueller,  96  Md.,  134,  137 
(1902);  Sanborn  v.  Hoyt,  24  Me.,  118  (1844);  Manwaring  v.  Jenison,  61 
Mich.,  117,  139  (1886);  Edwards  Co.  v.  Rank,  57  Nob.,  323,  326  (1899); 
Stackpole  v.  Eastern  R.  R.,  62  N.  H.,  493,  494  (1883);  Schuchardt  v. 
Mayor  of  New  York,  53  N.  Y.,  202,  208  (1873) ;  Cowell  v.  Phoenix  Ins. 
Co.,  126  N.  C,  684  (1900)  ;  Long  v.  White,  42  Ohio  St.,  59,  61  (1884)  ; 
Willis  V.  Moore,  59  Tex.,  628  (1883);  Lombard!  v.  Spero,  14  Tex.  Civ. 
App.,  594,  597  (1896);  Straw  v.  Straw,  70  Vt.,  240,  242  (1897);  Kimball 
V.  Sattley,  55  Vt.,  285,  291  (1883) ;  Keefe  v.  Furlong,  96  Wis.,  219,  221 
(1897) ;  Kirch  v.  Davies,  55  Wis.,  287,  296  (1882)  ;  Smith  v.  Waggoner, 
50  Wis.,  155,  162  (1880);  Corcoran  v.  Webster,  50  Wis.,  125,  130  (1880); 
Rose  V.  Hope,  22  Up.  Can.  C.  P.,  482,  485;  see,  also.  Rich  v.  Donovan, 
81  Mo.  App.,  184  (1899);  McGregor  v.  McNeil,  32  Up.  Can.  C.  P.,  538 
(1882);  Walton  v.  Jarvis,  14  Up.  Can.  Q.  B.,  640;  and,  post,  p.  *311.] 
See,  however,  Burk  v.  Hollis,  98  Mass.,  55  (1867).  [Eddy  v.  Hall,  5 
Colo.,  576,  581   (1881).] 

[Where  land  was  demised,  and  the  buildings  thereon  were  sold  by  the 
landlord  to  the  tenant,  the  buildings  became  chattels;  and,  upon  recovery 
of  the  land  by  the  landlord  in  ejectment,  he  can  not  make  entry  upon  the 
houses.     Toronto  Hospital  v.  Denham,  31  Up.  Can.  C.  P.,  203  (1880).] 

[Where  a  decree  for  the  sale  of  land  excepted  a  sawmill  thereon,  a  pur- 
chaser at  the  sale  acquires  no  title  to  the  mill  although  it  is  a  part  of  the 
realty,  and  although  no  reservation  was  made  in  the  notice  of  sale  nor  in 
the  deed.    First  Nat.  Bank  of  Braddock  v.  Hyer,  46  W.  Va.,  13  (1899).] 

[A  bequest  of  fixtures  to  trustees  to  be  used  in  connection  with  the  mines 
upon  which  they  are  situated,  is  a  severance.  Ward  v.  Dudley  (1887),  57 
Law  T.  R.,  20,  21.] 

[Where  plaintiffs  levy  upon  lands  and  goods,  and  the  defendant  claims 
exemption  of  the  growing  crops,  which  are  appraised  without  objection 
from  the  plaintiffs,  this  constitutes  a  severance;  and  the  plaintiffs  after- 
wards purchasing  the  land,  can  not  assert  right  to  the  crops.  Hershey  v. 
Metzgar,  90  Pa.  St.,  217,  220  (1879).] 

[A  sale  of  a  mature  crop,  no  longer  drawing  nutriment  from  the  soil, 
operates  as  a  constructive  severance  as  against  a  subsequent  purchaser  of 
the  land  at  a  foreclosure  sale.  First  Nat.  Bank  of  Clay  Centre  v.  Beegle, 
52  Kan.,   709,  711    (1894).] 

[A  mortgage  of  crops  by  a  mortgagor  of  the  realty  in  possession  is,  in 
law,  such  a  severance  of  them  that  they  will  not  pass  at  a  subsequent 
sale  under  the  mortgage  of  the  realty.  White  v.  Pulley,  27  Fed.,  436, 
442    (U.  S.  C.  C,  Ala.,  1886).] 

[An  agricultural  lien  on  crops,  given  by  a  tenant,  effects  severance  as 


CH.\P.  I.]  SEVERANCE.  *45 

against  a  purchaser  of  the  land  on  execution  sale.  Dail  v.  Freeman,  92 
N.  C,  351,  357   (1885).] 

[A  conveyance  of  land,  except  an  undivided  one-fourth  of  a  brick  fac- 
tory standing  upon  a  part  of  the  land,  does  not  make  the  factory  personal 
property.     Allen  v.  Scott,   38   Mass.,   25,   28    (1838).] 

[A  sale,  by  a  landlord,  of  a  building  in  possession  of  a  tenant,  does  not 
convert  the  building  into  personal  property  as  between  such  purchaser  and 
the  tenant.     Eiewe  v.  McCormick,  11  Neb.,  261   (1881).] 

[A  mill  and  fixtures,  being  excepted  from  a  conveyance,  does  not  alter 
their  character  so  as  to  make  them  subject  to  levy  and  sale  as  personal 
property.     Davis  v.  Eastham,  81  Ky.,  116,  117   (1883).] 

[Where  the  grantor  of  a  farm  reserves,  in  the  deed,  the  wheat  thereon, 
and,  on  the  same  day,  sells  to  the  grantee  all  the  personal  property  situate 
on  the  farm,  the  growing  wheat  will  not  pass,  as,  although  theoretically 
separated,  it  was  still  a  part  of  the  soil.  Holderman  v.  IVliller,  102  Ind., 
356,  363   (1885).] 

[Fixtures  permanently  annexed  to  the  soil  by  the  owner  are  not  con- 
structively severed  by  a  bill  of  sale  not  under  seal.  Dudley  v.  Foote,  63 
N.  H.,  57,  60  (1884).] 

[A  chattel  mortgage  of  fixtures  attached  to  a  homestead,  which  does 
not  comply  with  the  requirements  of  the  statute  relating  to  conveyance  of 
homesteads,  is  invalid  and  not  a  severance.  Gentry  v.  Bowser,  2  Tex. 
Civ,  App.,  388,  391   (1893).] 

[A  chattel  mortgage  of  a  two-story  hotel,  by  the  owner  of  the  land,  is 
void.     Becler  v.  C.  C.  Mercantile  Co.,  70  Pac,  943,  945   (Idaho,  1902).] 

But  such  a  severance  can  not  be  made  by  the  levy  of  an  execution  by  a 
creditor.  See  Hemenway  v.  Cutler,  and  other  cases  cited  ante,  in  this  sec- 
tion. 

(A  levy  upon  a  growing  crop  of  a  tenant  is  a  constructive  severance  as 
against  the  landlord  subsequently  recovering  possession  for  non-payment 
of  rent.  Russell  v.  Moore  (1880),  8  L.  R.,  Ire.,  318.]  In  Bank  of  Lansing- 
burg  v.  Crary,  which  was  the  case  of  a  chattel  mortgage  of  growing  grass, 
etc.,  the  chattel  mortgage  given  by  the  owner  of  the  fee  was  considered 
not  to  work  a  severance  till  it  became  absolute  by  non-performance  of  the 
condition,  flio  mortgagor  before  that  time  being  the  owner  in  fee  of  the 
land,  and  also  the  legal  owner  of  the  grass,  with  the  right  of  possession 
of  the  grass,  and  an  interest  therein,  and  until  forfeiture,  the  ownership 
of  land  and  grass  not  being  separated.  See,  also,  Burk  v.  Hollis  (supra). 
[Kimball  v.  Sattlcy,  .55  Vt.,  28.5,  292   (1883).] 

The  point  docs  not  seem  to  have  been  distinctly  raised  and  discussed  in 
subsequent  cases,  though  chattel  mortgages  have  been  held  in  a  number  of 
cases  to  work  a  severance,  and  to  prevent  a  chattel  from  becoming  a  fixture 
by  annexation  to  the  land.  Son  Ford  v.  Cobb,  and  other  cases  cited  in  chap. 
9  and  notes;  Griffin  v.  Allen,  Sup'r  Ct.  of  Buffalo  <1S57);  2  Clint.,  N.  Y. 
Dig.,  141.5,  pi,  47;  Gooding  v.  Riley,  50  N.  H.,  400  (1870),  and  cases  therein 
cited.  Probably  the  point  would  not  now  be  de<-ided,  as  in  1  Barb.,  542. 
[Where  grass  belongs  to  one  not  the  owner  of  the  land,  he  can  give  a  chat- 
tel jmortgage  thereof,     Jencks  v.  Smith,   1   N,  Y.,  90,   91    (1847).] 

67 


♦46  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

[*46J  *by  agreement  of  the  owners  and  other  parties  interested 
in  the  hind  and  iixtures,  become  detached  and  converted  into  per- 
sonalty, as  between  such  parties.^    And  they  may  in  like  manner, 

Where  a  building  was  sold  by  the  owner  of  the  land,  and  paid  for  by  the 
vendoe,  to  be  removed  by  a  certain  day  designated,  held,  in  the  absence  of 
any  clause  of  forfeiture  of  the  building,  on  failure  to  remove  by  that  day, 
that  it  was  not  thereby  forfeited  by  the  vendee.  Davis  v.  Emery,  supra. 
See,  also,  Hoit  v.  Stratton  Mills,  supra.  [Staekpole  v.  Eastern  E.  E.,  62 
N.  H.,  493,  494  (1883).  Where  the  grantor  of  land  reserved  the  right  to 
remove  a  building  thereon  before  a  certain  time,  but  there  was  no  agree- 
ment that  the  house  was  to  be  taken  in  the  nature  of  a  chattel  if  not 
removed  before  that  time,  the  house  passes  with  the  freehold  if  not  removed 
by  the  date  fixed.     Brown  v.  Fox,  33  N.  Y.  Supp.,  57   (1895).] 

1  Harlan  v.  Harlan,  20  Penn.  St.,  303  (1853);  Hensley  v.  Brodie,  16 
Ark.,  511  (1855).  See  this  subject  more  fully  considered  in  chap.  3. 
[Banfill  V.  Twyman,  71  111.  App.,  253,  256  (1896),  aff'd  172  111.,  123 
(1898)  ;  Medley  v.  People,  49  111.  App.,  218,  223  (1892)  ;  Tyson  v.  Post, 
108  N.  Y.,  217,  221  (1888),  aff'g  22  N.  Y.  Wkly.  Dig.,  492  (Supr.  Ct., 
1885);  Bennett  v.  Bagley,  29  Supr.  Ct.  (22  Hun),  408,  410  (N.  Y., 
1880);    Corcoran  v.  Webster,   50  Wis.,   125    (1880).] 

[At  an  execution  sale,  there  being  some  question  whether  an  engine, 
boiler  and  machinery  were  a  part  of  the  land  upon  which  they  were  sit- 
uated, the  judgment  debtor,  judgment  creditor,  and  the  sheriflp  agreed  that 
they  were  personal  property,  and  they  were  bought  as  such  by  the  judgment 
creditor,  who  also  bought  the  land,  and  the  articles  were  removed.  An- 
other creditor  subsequently  redeemed  the  land.  Held,  that  the  redeeming 
creditor  could  not  claim  the  articles  as  a  part  of  the  land.  Bennett  v. 
Bagley,  29  Supr.  Ct.   (22  Hun),  408,  410   (N.  Y.,  1880).] 

[Where  an  agreement  to  buy  an  engineering  establishment  for  $480,000 
was  entered  into,  and  the  buyer  gave  a  mortgage  to  secure  $440,000  of  the 
purchase  price,  whatever  had  received  the  impress  of  a  fixture  under  this 
transaction  could  not  be  dissevered  by  the  subsequent  acts  of  the  parties 
in  giving  a  deed  to  real  estate  for  $203,000  and  a  bill  of  sale  of  chattels, 
machinery,  tools,  engines,  fixtures,  etc.,  for  $277,000.  Morris's  App.,  88 
Pa.  St.,  368,  384    (1879).] 

[Where  the  owner  of  land  mortgages  it,  and  gives  a  chattel  mortgage 
upon  fixtures  which  would  otherwise  be  a  part  of  the  realty,  the  giving  of 
a  subsequent  mortgage  of  the  land  without  reserving  the  fixtures,  would 
indicate  an  intention  to  reunite  the  property  constructively  severed;  and 
when  the  chattel  mortgage  expires,  the  increased  value  attaches  to  the 
land,  and  is  not  intercepted  by  an  execution  against  goods.  Carson  v. 
Simpson,   25  Ont.,   385    (1894).] 

[Where  a  hotel  was  conveyed  by  deed,  and  the  fixtures  therein  by  a 
bill  of  sale  to  the  same  person,  this  is  not  a  constructive  severance  in  the 
absence  of  intention;  and  the  act  of  the  vendee  in  permitting  the  fixtures 
to  remain  annexed,  negatives  the  idea  of  an  intent  to  sever;  and,  if  this 

68 


CHAP.  I.]  SEVERANCE.  *46 

without  express  agreement,  retain  the  character  of  chattels,  if 
so  treated  by  all  parties  in  interest.^ 

is  not  so,  the  subsequent  conveyance  of  the  hotel,  without  mentioning  the 
fixtures,  shows  an  intent  to  reannex.  Solomon  v.  Staiger,  65  N.  J.  Law, 
617,   619    (1900).] 

2  See  Trappes  v.  Barter,  2  Cr.  &  M.,  153  (1833)  ;  s.  c,  3  Tyr.,  603;  and 
the  eases  cited  post  in  Chap.  3  [p.  *72.  St.  Joseph  Co.  v.  Wilson,  133 
Ind.,  465,  471  (1892);  Malott  v.  Price,  109  Ind.,  22,  25  (1886);  Price  v, 
Malott,  85  Ind.,  266,  269  (1882);  Keeney  v.  Whitlock,  7  Ind.  App.,  160 
(1893) ;  Earley  v.  Withers,  1  Pearson,  248  (Pa.,  1864)  ;  see,  also,  McKinley 
V.  Smith,  25  111.  App.,  168,  175  (1886)].  See,  however,  Hemenway  v. 
Cutler,  and  other  cases  cited  in  note  ijost  in  this  section.  [Where  officers 
of  the  law  treat  articles  as  severed  from  the  realty,  first  selling  them  as 
chattels,  and  three  months  later  selling  the  land  to  parties  who  acquiesced 
in  the  previous  sale,  such  articles  will  not  pass  with  the  land  although 
remaining  thereon,  and  although  they  might  have  passed  ordinajfily  under 
a  sale  of  the  land.  The  officers  stand  in  the  place  of  the  owners,  and 
their  acts  effected  a  severance  with  the  implied  assent  of  the  purchasers, 
and  the  latter  can  not  maintain  trespass  for  the  removal  of  the  articles. 
Banfill  V.  Twyman,  71  111.  App.,  253,  257  (1896),  aff'd  172  111.,  123 
(1898).  Where  a  tax  collector  has  authority  to  seize  real  property  but 
not  personal  property  for  unpaid  taxes,  and  he  attaches,  as  personal  prop- 
erty, an  engine,  boiler  and  machinery,  accidentally  severed  by  the  burning 
of  the  mill,  for  taxes  upon  the  mill,  ho  recognizes  the  change  in  the 
character  of  the  property;  and,  as  personal  property,  it  is  free  from  the 
lien  upon  the  mill.  State  v.  Goodnow,  80  Mo.,  271,  275  (1883).]  In 
Adams  v.  Lee,  31  Mich.,  440  (1875),  certain  machinery  substantially 
annexed  to  the  building,  was  owned  by  II.,  the  real  estate  being  owned 
by  K.  K.  afterwards  conveyed  an  undivided  one-fourth  of  the  real  estate 
to  H.,  and  H.  sold  to  K.  an  undivided  one-half  of  the  machinery,  so  that 
K.  then  owned  three-fourths  of  the  land  and  one-half  of  the  machinery, 
and  H.  owned  one-fourth  of  the  land  and  one-half  of  the  machinery. 
Afterwards  K.  sold  an  undivided  one-fourth  of  the  land  and  his  one-half 
of  the  machinery  to  W.  G.  K.,  which  made  H.  and  W.  G.  K.  owners  of  the 
undivided  one-half  of  the  land  and  the  whole  of  the  machinery.  Subse- 
quently n.  sold  and  conveyed  to  W.  G.  K.  an  undivided  one-fourth  of  tho 
land,  and  on  this  sale  W.  G.  K.  gave  back  to  II.  a  mortgage  on  the  undi- 
vided one-half  of  the  land  to  secure  unpaid  purchase  money,  the  machinery 
not  being  mentioned  in  this  mortgage.  On  tho  foreclosure  of  this  mort- 
gage the  prfmisoH  wore  sold  to  li.,  who  claimed  the  machinery  as  fixtures. 
The  plaintiff  chiimed  the  machinery  by  a  purchase  of  it  as  personal  prop- 
erty from  W.  G.  K.  previous  to  the  foreclosure.  Held,  that  there  having 
been  at  no  time  a  unity  of  ownership  in  tho  land  and  machinery,  no  one 
of  tho  parties  having  had  an  interest  in  the  land  cn-oxtcnsivo  with  his 
interest  in  the  machinery,  the  titles  to  the  two  being  distinct,  the  machinery 
remained  personalty,  and  did  not  pass  by  the  mortgage.    Cooley,  J.:    "The 

69 


•47  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

As  to  the  effect  of  the  severance  of  fixtures,  it  is  clear  that 
Avhen  done  by  the  owner  of  the  freehold,  with  the  intent  to  con- 
vert into  chattels,  the  articles  severed  become  personal  prop- 
!  *47]  *erty.^  So,  where  done  by  a  stranger,  or  one  not  having  the 
right  to  sever,  the  thing  severed  becomes  the  personal  property 
of  the  owner  of  the  freehold,  if  he  so  elect,  as  by  bringing  re- 
plevin, trover,  or  trespass  de  bonis  asportatis^     And  in  those 

fact  that  the  owner  of  the  thing  aflRxed  to  the  freehold  has  an  undivided 
interest  in  the  latter,  cannot  render  the  former  a  fixture,  when  the  interests 
are  different  in  extent.  A  thing  can  not,  as  to  an  undivided  interest 
therein,  be  real  estate,  and  as  to  another  undivided  interest,  be  personalty; 
it  must  be  one  thing  or  the  other."  [Schellenberg  v.  Detroit  Heating  Co., 
130  jNIich.,  439,  441  (1902)  ;  Lansing  Iron  Works  v.  Walker,  91  Mich.,  409, 
413  (1892);  Scudder  v.  Anderson,  54  Mich.,  122,  126  (1884);  see,  also, 
McDonald  v.  Shepard,  25  Kan.,  112,  115   (1881).] 

3  Bliss  V.  Misner,  2  Hun,  391  (1874),  saws,  belting,  etc.,  which,  when 
severed,  were  held  capable  of  sale  by  parol.  [See,  post,  p.  *303.  Beach  v. 
Allen,  14  Supr.  Ct.  (7  Hun),  441  (1876);  Connor  v.  Squiers,  50  Vt.,  680, 
683   (1878);  Patton  v.  Moore,  16  W.  Va.,  428,  437   (1880).] 

[Old  iron  which  has  been  used  on  a  railway,  and  cast  off  as  unfit  for 
further  use,  is  subject  to  seizure  under  a  writ  de  bonis.  Wyatt  v.  Levis 
&  K.  E.  E.  Co.,  6  Que.  L.  E.,  213   (1880).] 

[Stones  taken  from  their  natural  places  upon  a  farm  and  piled  up, 
become  chattels.  Likewise,  lumber  from  a  building  torn  down.  McCarthy 
V.  McCarthy,  20  Can.  Law  T.,  Occ.  N.,  211,  212    (1900).] 

[Manure  scraped  up  by  the  landowner  from  a  farm-yard,  and  placed  in 
heaps  upon  an  adjoining  field  for  the  purpose  of  being  removed  by  a 
buyer  thereof,  is  sufficiently  severed  as  not  to  pass  to  a  grantee  of  the 
farm  without  notice  of  the  sale.  French  v.  Freeman,  43  Vt.,  93,  97 
(1870).] 

4  Morgan  v.  Varick,  8  Wend.,  587  (1832);  Eogers  v.  Gilinger,  30  Penn. 
St.,  185  (1858);  Bulkley  v.  Dolbeare,  7  Conn.,  232  (1828);  Gardner  v. 
Finley,  19  Barb.,  317  (1855)  ;  Farrant  v.  Thompson,  5  B.  &  Aid.,  826 
(1822) ;  see,  also,  1  Brownl.  &  Goldsb.,  42,  where  it  is  stated  that  by  the 
common  law  the  lord  of  the  manor  may  come  and  take  away  a  tree  cut 
down  upon  the  copyhold  land  by  his  copyholder,  without  any  special  cus- 
tom for  it.  [Schulenberg  v.  Harriman,  88  U.  S.,  44,  64  (1874)  ;  McNally 
V.  Connolly,  70  Cal.,  3,  6  (1886) ;  McGinnis  v.  Fernandes,  32  111.  App., 
424,  425  (1889);  Central  Branch  E.  E.  Co.  v.  Fritz,  20  Kan.,  430,  437 
(1878)  ;  Luce  v.  Ames,  84  Me.,  133,  134  (1891)  ;  Nelson  v.  Graff,  12  Fed., 
389  (U.  S.  C.  C,  Mich.,  1882)  ;  Gasco  v.  Marshall,  7  Up.  Can.  Q.  B.,  193, 
196;  see,  also.  Agate  v.  Lowenbeim,  57  N.  Y.,  604,  614  (1874);  Connor 
V.  Squiers,  50  Vt.,  680,  683    (1878) ;   and,  ante,  p.   *44.] 

[Fixtures  removed  with  the  consent  of  the  mortgagee,  but  without  the 
consent  of  the  mortgagor,  become  personal  property  freed  from  the  lien 

70 


CHAP.  I.]  SEVERANCE.  *47 

States  where  the  giving  of  a  mortgage  upon  land  is  held  to  be  a 
conveyance  thereof  to  the  mortgagee,  the  same  rule  is  applied  in 
ease  of  the  severance  and  removal  of  fixtures  by  the  mortgagor 
or  other  persons;  and  such  fixtures  are  in  such  case  recoverable 
by  the  mortgagee  as  personal  property.^ 

of  the  mortgage,  and  the  mortgagor  can  recover  damages  for  such  tres- 
pass; and  subsequent  foreclosure  proceedings  are  inoperative  as  to  such 
fixtures.     Hill  v.  Gwin,  51  Cal.,  47,  50    (1875).] 

[A  granary,  removed  from  a  homestead,  by  a  trespasser,  may  be  treated 
by  the  owner  as  exempt  personal  property,  and  a  judgment  against  the 
trespasser  is  also  exempt.  Wylie  v.  Grundysen,  51  Minn.,  360,  362 
(1892).] 

BSee  Smith  v.  Goodwin,  2  Me!,  173  (1822);  Hemenway  v.  Bassett,  13 
Gray,  378  (1859);  Gore  v.  Jenness,  19  Me.,  53  (1841),  timber;  see,  also, 
the  cases  cited  post  in  Chap.  9.  [DeLacy  v.  Tillman,  83  Ala.,  155  (1887)  ; 
Steed  V.  Knowles,  79  Ala.,  446,  448  (1885) ;  Gill  v.  Weston,  110  Pa.  St., 
305,  316  (1885);  see,  also,  Vann  v.  Lumsford,  91  Ala.,  576,  583  (1890); 
Be  Bruce,  9  Benedict,  236  (U.  S.  Dist.  Ct.,  Vt.,  1877)  ;  Scottish  Am.  Co. 
V.  Sexton,  26  Ont.,  77,  79  (1894)  ;  Harris  v.  Malloch,  21  Up.  Can.  Q.  B., 
82  (1861);  Anderson  v.  McEwen,  9  Up.  Can.  C.  P.,  176;  Brown  v.  Brook- 
field,  24  Nova  S.,  476  (1892).]  The  mortgagee,  however,  as  it  seems, 
takes  the  proceeds  of  timber  cut  on  the  mortgaged  premises,  subject  to 
liability  to  account  therefor,  if  the  premises  are  redeemed.  Gore  v.  Jenness 
{supra).    See  Hutchins  v.  King,  post,  in  this  section. 

But  where  the  mortgagors  severed  an  engine  put  by  them  in  a  mill  on  the 
mortgaged  premises  after  the  execution  of  the  mortgage,  and  shipped  it 
accompanied  by  a  bill  of  lading  to  an  agent  for  sale,  who  sold  it  and 
endorsed  the  bill  of  lading  to  a  bona  fide  purchaser  without  notice,  held, 
that  though  a  fixture,  the  bill  of  lading  in  regard  to  the  transfer  of  the 
property,  like  a  bill  of  exchange,  was  good  unless  affected  by  notice,  and 
that  therefore  trover  did  not  lie  by  the  mortgagees  against  the  vendee. 
Cope  v.  Eomeyne,  4  McLean,  384   (1848). 

[Where  a  mortgagor  of  land  moved  a  house  therefrom,  it  is  proper  to 
decree  a  sale  of  the  house  in  its  new  situs,  with  leave  to  the  purchaser 
to  roll  the  building  off  again,  it  not  appearing  that  the  building  was 
attached  to  the  freehold.     Turner  v.  Mebane,  110  N.  C,  413   (1891).] 

[Where  machines  were  severed  to  prevent  the  mortgagee  claiming  them, 
and  he,  under  a  mistake  of  fact,  consents  to  an  order  for  the  sale  of  the 
machinery,  such  order  will  be  set  aside.  Huddersfield  Banking  Co.  v. 
Lister  [1895],  2  Ch.,  273.] 

[Whore  a  second  mortgagee  of  a  sawmill  required  the  mortgagor  to 
insure  the  machinery  for  the  benefit  of  the  second  mortgagee,  he  will 
acquire  no  superior  right  to  the  insurance-money  over  the  first  mortgagee 
where  such  machinery  was  a  part  of  the  building.  Carr  v.  Fire  Assurance 
Ass'n,  14  Ont.,  487  (1887).] 

71 


*48  THE  LAW  OP  FIXTURES.  [CHAP.  L 

lu  the  case  of  mere  liens  upon  land  to  which  are  annexed 
fixtures,  there  is,  however,  a  considerable  diversity  of  opinion 
as  to  the  effect  of  severance.  "While  in  general,  as  against  third 
parties,  the  owner  of  the  land  subject  to  the  lien  may  detach 
the  fixtures  and  convert  them  again  into  personalty,  yet,  accord- 
ing to  one  class  of  authorities,  neither  he  nor  his  assignee,  nor  a 
stranger  can  do  so,  so  as  to  divest  such  fixtures  from  the  lien, 
without  the  consent  of  the  party  entitled  to  the  benefit  thereof.^ 
[*48]  And  in  some  of  those  States  where  a  mortgage  *is  con- 
sidered a  mere  security  and  not  a  conveyance  of  the  land  the 
same  rule  has  been  considered  applicable.^     In  such  a  case  the 

6  Latham  v.  Blakely,  70  N.  C,  368  (1874),  where,  after  an  execution  had 
been  levied  upon  the  land,  the  execution  debtor  detached  fixtures.  [Becker 
.V.  Whitmer,  1  Pearson,  524  (Pa.,  1862) ;  Second  Nat.  Bank  v.  Hatch,  24 
Wash.,  421  (1901);  see,  also,  Kendall  Mfg.  Co.  v.  Eundle,  78  Wis.,  150 
(1890).]  Gray  v.  Holdship,  17  S.  &  E.,  413  (1828),  where  the  severance 
was  made  by  a  third  party.  [Brown  v.  Sage,  11  Gr.  Ch.,  239,  244  (Ont., 
1865);   Phillips  v.  Myers,  55  Iowa,  265,  208    (1880).] 

See,  also,  Hcaton  v.  Findlay,  12  Penn.  r'A.,  307  (1849)  ;  Goff  v.  O'Connor, 
16  111.,  421  (1855);  Hutchman's  Appeal,  27  Penn.  St.,  209  (1856),  per 
Knox,  J.;  Boyle  v.  owanson,  6  La.  Ann.,  263  (1851).  [Weed  v.  Hall, 
101  Pa.  St.,  592,  596   (1882).] 

[One  who  has  the  possession  of  and  equitable  title  to  a  lot  under  a 
contract  of  sale,  may  remove  buildings  if  d^ne  in  good  faith;  and  the 
vendor,  having  a  lien  for  unpaid  purchase  money,  has  no  right  to  interfere. 
Weed  V.  Hall,  101  Pa.  St.,  592,  590  (1882).] 

iSee  Hutchins  v.  King,  1  Wall.,  53  (1863);  Witmer's  Appeal,  45  Penn. 
St.,   455,   463    (1860);    Hoskin   v.   Woodward,    45    Penn.    St.,   42    (1863). 

See,  also,  Clark  v,  Eeyburn,  1  Kan.,  281  (1863).  [Sullivan  v.  Toole,  33 
Supr.  Ct.  (26  Hun),  203,  205  (N.  Y.,  1882);  see,  also,  Betz  v.  Muench,  13 
Atl.,  622   (N.  J.,  1888);   SeatofiC  v.  Anderson,  28  Wis.,  212,   215    (1871).] 

In  Hutchins  v.  King,  which  was  a  case  coming  up  from  New  Hampshire, 
it  was  held  that  timber  growing  upon  mortgaged  land  constituted  a  portion 
of  the  realty,  and  was  embraced  in  the  pledge  of  the  land,  and  held  both 
before  and  after  it  was  cut  (without  the  mortgagees'  consent)  as  a  portion 
of  their  security.  But  that  when  the  amount  due  according  to  the  stipula- 
tion of  the  mortgage  was  paid,  the  lien  of  the  mortgage  upon  the  timber 
thus  wrongfully  severed  was  discharged,  and  the  property  therein  reverted 
to  the  mortgagor  or  his  vendee  of  such  timber;  and  that  any  subsequent 
sale  of  such  timber  by  the  mortgagee  after  such  payment,  was  a  conversion 
for  which  trover  lay.  In  Clark  v.  Eeyburn  (supra),  the  assignee  of  a 
mortgage  brought  replevin  for  a  dwelling  house  against  the  defendant 
who  had  bought  the  same  as  personal  property,  and  to  whom  it  had  been 
delivered  off  the  mortgaged  premises,  and  while  it  was  conceded  by  the 

72 


CHAP.  I.]  SEVERANCE.  *49 

mortgagee,  it  is  said,  is  to  be  considered  as  the  owner  of  tlie 
land  only  so  far  as  may  be  necessary  in  order  to  give  him  the 
full  benefit  of  his  security  and  appropriate  remedies  for  any  vio- 
lation of  his  rights,  but  for  no  other  purpose.^  And  for  the 
purpose  of  giving  him  the  full  benefit  of  his  security,  it  seems 
upon  principle  that  he  should  be  allowed  to  avail  himself  of 
any  appropriate  remedy,  whether  at  law  or  in  equity,  and  that 
the  mortgagor  ought  not  to  be  allowed  at  pleasure  to  withdraw  a 
fixture  which  had  hitherto  constituted  a  portion  of  the  mort- 
gagee's security  from  the  lien  of  mortgage  without  the  mort- 
gagee's consent  thereto,  and  that  if  severed  without  *such  [*49] 
consent,  such  fixtures  should  still  remain  subject  to  such  lien. 
The  more  numerous  class  of  cases,  however,  seems  to  lay  down 
the  rule  that  unless  such  severance  would  impair  the  mortgagee's 
security  and  render  it  of  doubtful  adequacy,  the  mortgagee  has 
no  remedy  for  such  severance  either  by  recaption  of  the  article 
severed,  action  at  law  for  such  severance,  or  for  the  articles 
severed,  or  by  injunction  to  restrain  the  mortgagor  from  making 
the  same.3 

court  that  in  States  where  the  common  law  on  the  subject  had  not  been 
changed  by  statute,  the  mortgagee,  for  the  purpose  of  protecting  and 
enforcing  his  lien,  had  the  remedies  of  an  owner,  though  for  those  pur- 
poses only;  yet,  held,  that  the  rule  in  that  State  had  been  changed  by  the 
statute  (Com.  Laws,  p.  355,  §  12)  providing  that  "in  the  absence  of 
stipulations  to  the  contrary,  the  mortgagor  of  real  estate  may  retain  the 
right  of  possession  thereof,"  and  that  the  plaintiff  not  being  the  owner 
of  the  house,  as  alleged  in  his  petition,  could  not  maintain  replevin  there- 
for. See,  also,  Crippen  v.  Morrison,  13  Mich.,  35  (1864).  [When  a  mort- 
gage creates  a  lien  upon  a  building  attached  to  the  freehold  in  such  a 
way  as  to  make  it  a  part  of  the  real  estate,  such  lien  can  not  be  defeated 
by  removing  such  buihling  to  another  piece  of  real  estate;  and  the  original 
mortgagee's  lien  is  superior  to  that  of  one  holding  a  mortgage  on  the  land 
to  which  the  building  was  moved,  taken  after  such  removal,  and  having  no 
notice,  as  where  the  equities  are  equal,  and  neither  has  the  legal  title,  the 
prior  equity  will  prevail.    Johnson  v.  Bratton,  112  Mich.,  319,  325  (1897).] 

2  See  Hutchins  v.  King,  and  Clark  v.  Rcyburn  (sujira).  [Tlill  v.  Gwin, 
51  Cal.,  47  (1875);  Lavenson  v.  Standard  Soap  Co.,  80  Cal.,  245  (1889); 
Tomlinson  v.  Thompson,  27  Kan.,  70  (1882);  Tate  v.  Field,  56  N.  J.  Eq., 
35  (1897);  Verner  v.  Betz,  46  N.  J.  Eq.,  256,  267  (1889);  Schalk  v. 
Kingsley,  42  N.  J.  Law,  32  (1880)  ;  Heath  v.  Ilaile,  45  S.  C,  642  (1895) ; 
Edler  v.  TIaache,  67  Wis.,  653,  661  (1887)  ;  see,  also,  Vaughn  v.  Grigsby, 
8  Colo.  App.,  373.  375   (1896).! 

3  See    Bennett    v.    Allen,    Suiir.    Ct.    of    Buffalo    (1857),    2    Clint.    Dig. 

73 


*49  THE  LAW  OP  FIXTURES.  [CHAP.  I. 

But  irrespective  of  the  question  whether  a  judgment  creditor 
may  pursue  property  after  severance,  the  proceeds  of  the  sale 
on  execution  of  machinery  in  a  building:,  wliether  such  machin- 
ery be  realty  or  personalty,  belonj?  to  the  execution  creditor 
■who  sells  it  as  personalty;  and  the  judgment  creditor  whose  lien 
has  attached  to  the  realty,  has  no  lien  upon  the  fund  raised  by 
the  sale  of  machinery  severed  from  the  freehold.    By  coming  in 

(N.  Y.),  1416,  pi.  48,  49;  Peterson  v.  Clark,  15  John.,  205  (1818);  Lane 
V.  Hitchcock,  14  John.,  213  (1817);  Gardner  v.  Heartt,  3  Den.,  232  (1846)  ; 
Yates  V.  Joyce,  11  John.,  136  (1814);  Citizens'  Bank  v.  Knapp,  22  La. 
Ann.,  117  (1870);  Buckout  v.  Swift,  27  Cal.,  433  (1865);  Cooper  v.  Davis, 
15  Conn.,  556  (1843),  where  it  was  held,  that  mill  stones  severed  from  a 
mill  by  a  mortgagor  before  the  time  limited  for  foreclosure,  and  before 
the  mortgagee  had  taken  possession,  and  removed  and  sold,  could  not  be 
reclaimed  by  the  mortgagee  by  virtue  of  his  mortgage,  although  the  design 
of  the  mortgagor  probably  was  to  impair  the  security  and  prevent  the 
mortgagee  from  collecting  the  full  amount  of  his  debt,  and  that  the 
vendees  thereof  were  entitled  to  recover  in  trover  for  their  recaption.  See, 
however,  Cresson  v.  Stout,  17  John.,  116  (1819),  where  it  was  held,  that  a 
mortgagee  in  possession  may  replevy  machinery  severed  from  the  freehold 
as  against  a  subsequent  levy  by  an  execution  creditor,  though  it  was  part 
of  the  freehold  when  sold  by  the  sheriff.  See  i^ost  remedies  [p.  *415. 
McKelvey  v.  Creevey,  72  Conn.,  464  (1900)  ;  Vanderslice  v.  Knapp,  20 
Kan.,  647,  649  (1878)  ;  Harris  v.  Bannon,  78  Ky.,  568,  570  (1880)  ;  Ham- 
lin V.  Parsons,  12  Minn.,  108;  Kircher  v.  Schalk,  39  N.  J.  Law,  335,  339 
(1877)  ;  see,  also,  Weill  v.  Thompson,  24  Fed.,  14  (U.  S.  C.  C,  La.,  1885)  ; 
Partridge  v.  Hemenway,  89  Mich.,  454  (1891)  ;  Alexander  v.  Shonyo,  20 
Kan.,  705,  707  (1878)  ;  Moore  v.  Moran,  64  Neb.,  84  (1902) ;  Hamilton  v. 
Austin,  43  Supr.  Ct,  (36  Hun),  138,  143  (N.  Y.,  1885);  Eeynolds  v.  Deck- 
man,  2  Can.  Law  T.,  261    (Nova  S.,  1882);   and,  post,  p.   *412.] 

[In  The  Canada,  7  Fed.,  248  (U.  S.  Dist.  Ct.,  Ore.,  1881),  the  mort- 
gagor of  a  vessel,  while  in  a  foreign  port,  removed  the  copper  sheathing;, 
and  replaced  it  with  new,  the  greater  portion  of  the  old  copper  being 
stowed  in  the  hold  and  brought  to  this  country.  The  mortgagee  claimed 
it  as  a  part  of  his  security.  Held,  that  a  mortgagor  has  a  right  to  dispose 
of  old  material  where  he  makes  a  repair  in  good  faith,  and  replaces  the 
old  material  with  new  of  equal  or  greater  value;  but  if  he  makes  no  dis- 
position of  it,  and  suffers  it  to  remain  on  board,  the  old  material  will  still 
belong  to  the  ship  if  capable  of  being  used  in  some  form  in  the  navigation 
of  the  vessel.  In  this  case,  it  not  appearing  that  the  copper  could  be  of 
any  use  in  the  ordinary  navigation  of  the  vessel,  and  the  master  having 
brought  it  to  this  country  because  of  a  better  market,  and  as  the  security 
of  the  mortgagee  had  been  enhanced,  the  mortgagee  had  no  claim  on  the 
old  copper.] 

74 


CHAP.  I.]  SEVERANCE.  *50 

upon  the  proceeds,  the  judgment  creditor  recognizes  the  title  of 
the  purchaser  of  it  as  personalty.* 

If  land  be  let  with  fixtures  thereto  annexed,  or  with  a  house 
or  timber  trees  thereon,  the  lessee  has  a  special  property  to 
make  use  of  the  same  during  his  term,  but  the  general  prop- 
erty remains  in  the  lessor  f  and  if  the  tenant  severs  the  fixtures, 
*pulls  down  the  house,  or  fells  the  timber,  the  lessor  shall  [*50] 
have  them  after  such  severance.^  But  if  a  house  falls  down 
per  vim  venti,  or  other  act  of  God,  in  the  time  of  the  lessee  for 
life,  or  for  years,  or  in  the  time  of  the  tenant  in  dower,  by  the 
courtesy,  etc.,  the  particular  tenant  has  a  special  property  in  the 
timber  to  rebuild  the  like  house  as  the  other  was  for  his  habita- 
tion, though  the  general  property  is  in  the  reversioner.'^  But  the 
tenant  has,  as  it  seems,  a  special  property  in  such  timber  for 
no  other  purpose  than  to  rebuild  the  premises;  and  where  the 
building  is  destroyed  by  fire,  the  tenant  has  no  right  to  remove 

4Hutchman's  Appeal,  27  Penn.  St.,  209  (1856).  [But  see  McCaskill 
V.  Eichmond  Industrial  Co.,  23  Que.,  C.  S.,  381  (1902),  as  to  a  mortgagee, 
where  no  actual  severance  is  made.] 

6  Bull.  N.  P.,  33;  Liford's  Case,  11  Co.,  48  a  (1614);  Bowles 's  Case,  11 
Co.,  81b   (1615);  Farrant  v.  Thompson,  5  B.  &  Aid.,  826   (1822). 

[A  lessee  of  premises  "as  a  site  for  a  building"  owned  by  him,  is 
entitled  to  the  use  of  a  stone  foundation  upon  which  his  building  rests 
and  has  always  rested,  as  against  a  prior  purchaser  of  the  stone  from  the 
landlord,  the  tenant  having  no  notice  of  such  sale.  Townsand  v.  Ford,  72 
App.  Div.,  621    (N.  Y.,   1902).] 

[Where  a  leased  building  is  destroyed  by  fire,  though  the  lessor  is  not 
bound  to  rebuild,  yet  any  building  which  he  might  erect  would  become 
a  part  of  the  realty,  and  enure  to  the  benefit  of  the  lessee  during  his  term. 
Rogers  v.  Snow,  118  Mass.,  118,  124   (1875).] 

"Sec  Bowles's  Case,  11  Co.,  81b  (1615);  Liford's  Case,  11  Co.,  48a 
(1614);  Herlakenden 's  Case,  4  Co.,  62  a,  63  a  (1589);  Paget 's  Case,  5  Co., 
76b  (1593-4);  Bulkley  v.  Dolbeare,  7  Conn.,  232  (1828);  Berry  v.  Heard, 
Cro.  Car.,  242  (1622);  Palm.,  327;  W.  Jones,  255;  7  Term,  11;  Mooers  v. 
Wait,  3  Wend.,  104  (1829);  Farrant  v.  Thompson,  2  D.  &  E.,  1  (1822), 
S.  C,  5  B.  &  Aid.,  826.  [Leonard  v.  Stickney,  131  Mass.,  541,  545  (1881)  ; 
Petre  v.  Ferrers  (1891),  Weekly  Notes,  171;  see,  also,  Ex  parte  D'Eresby 
(1881),  44  L.  T.  E.,  781;  and,  post,  p.  *432.] 

7  Bowles's  Case,  11  Co.,  82  a  (1615);  Co.  Lit.,  53  a;  Bull.  N.  P.,  33; 
Herlakenden 's  Case,  4  Co.,  63  a  (1589);  Boydell  v.  McMichacl,  3  Tyr., 
974  (1834) ;  s.  C,  1  Cr.  M.  &  E.,  177.  See,  however,  dicta  of  Baylcy  and 
Holroyd,  JJ,,  in  Farrant  v.  Thompson,  5  B.  &  Aid.,  826  (1822). 

75 


•50  THE  LAW  OF  FIXTURES.  [CHAP.  I. 

fixtiircs  rented  by  him  with  and  as  a  part  of  such  demised 
premises,  to  another  buikling  rented  by  him  from  a  third  per- 
son, and  there  set  them  up  for  iise.^ 

8  Pope  V.  Garrard,  39  Geo.,  471  (1869).  The  articles  in  this  case  were  the 
counters  and  drawers  for  a  drug  store,  put  in  the  building  by  the  landlord. 
See  Kev.  Code,  §  2192-2194.     [See,  post,  p.  *444.] 

[Where  machinery,  belonging  to  the  landlord,  is  severed  by  fire,  this 
would  not  make  the  machinery  the  property  of  the  tenant.  Donkin  v. 
Crombie,  11  Up.  Can.  C.  P.,  601,  605.] 


76 


CHAPTER  II.  [*51] 

OF   THE    RIGHT    TO   FIXTURES,   AS   BETWEEN   THE 

OWNER  OF  THE  FREEHOLD  AND  A  STRANGER 

IMAKING  ANNEXATIONS  THERETO. 

It  is  a  rule  of  law  of  great  antiquity,  that  whatever  is  affixed 
to  the  soil  becomes  a  part  of  the  realty,  and  subject  to  the 
same  rules  of  law  as  the  soil  itself.^ 

The  rule  is  best  expressed  in  the  words  of  the  maxim: 
Quicquid  plantatur  solo,  solo  cedit?  By  the  Institutes  of  the 
Civil  Law,  it  was  provided  that  "if  a  man  builds  upon  his  own 
ground  with  the  materials  of  another,  he  is  considered  the  pro- 
prietor of  the  building,  because  everything  built  on  the  soil  ac- 
cedes to  it.^  The  owner  of  the  materials  does  not,  however, 
cease  to  be  the  owner ;  only  while  the  building  stands  he  can  not 
claim  the  materials,  or  demand  to  have  them  exhibited,  on  ac- 
count of  the  law  of  the  Twelve  Tables  providing  that  no  one 
is  to  be  compelled  to  take  away  the  tignum  of  another,  which 
has  been  made  part  of  his  own  building,  but  that  he  may  be 
made,  by  the  action  de  tigno  injuncto,  to  pay  double  the  value ; 
and  under  the  term  tignum  all  materials  for  building  are  com- 
prehended. The  object  of  this  provision  was  to  prevent  the 
necessity  of  buildings  being  pulled  down.  But  if  the  building 
is  destroyed  from  any  cause,  then  the  owner  of  the  materials, 

iSee  Terry  v.  Robins,  13  Miss.,  291  (1845);  Broom's  Lep.  Max.,  401; 
10  Hen.,  7,  2  b  (1494);  20  Hen.,  7,  13  (1504);  21  Hen.,  7,  26  (1506);  Co. 
Lit.,  53  a,  and  generally  the  authorities  cited  throughout  this  vohiiue.  [See 
Gough  V.  Wood   [1894],   1   Q.  B.,  713,   719,] 

2  In  several  of  the  old  books  the  word  "fixatur"  is  used  as  synonymous 
with  "plantatur."  See  Climie  v.  Wood,  L.  R.,  3  Exch.,  260  (1868),  per 
Kelly,  C.  B. 

3  Qxiia  omne  quod  ivacdifirntur  solo  cedit.  See  Bract.  Lib.,  2,  chap.  2, 
§§  4,  6,  fol.  9b,  10;  Flcta  Lib.,  3  c,  2,  §  12,  fol.  176. 

77 


*52  THE  LAW  OF  FIXTURES.  [CIIAP.  II. 

[*52]  if  he  has  not  already  obtained  the  *double  value,  may  re- 
claim the  materials,  and  demand  to  have  them  exhibited.""* 

"On  the  contrary,  if  any  one  builds  with  his  own  materials 
on  the  ground  of  another,  the  building  becomes  the  property 
of  him  to  Avhom  the  ground  belongs.  But  in  this  case  the  owner 
of  the  materials  loses  his  property,  because  he  is  presumed  to 
have  voluntarily  parted  with  them,  that  is,  if  he  knew  he  was 
building  upon  another's  land;  and,  therefore,  if  the  building 
should  be  destroyed,  he  cannot  even  then  reclaim  the  materials. 
Of  course,  if  the  person  who  builds  is  in  possession  of  the  soil, 
and  the  owner  of  the  soil  claims  the  building,  but  refuses  to 
pay  the  price  of  the  materials  and  the  wages  of  the  workmen, 
the  owner  may  be  repelled  by  an  exception  of  dolus  mains,  pro- 
vided the  builder  was  in  possession  J)ona  fide.  For  if  he  knew 
that  he  was  not  the  owner  of  the  soil,  it  may  be  said  against 
him  that  he  was  wrong  to  build  on  ground  which  he  knew  to 
be  the  property  of  another. ' '  ^  These  provisions  have  been  made 
the  basis,  with  more  or  less  variation  therefrom,  for  correspond- 
ing regulations  in  several  modern  codes  ;^  and  in  some  respects  to 
be  hereafter  pointed  out,  have  been  adopted  by  the  common  law 
of  England  and  the  United  States,  though  not  to  their  full  extent. 
Britton,*^  in  treating  the  subject,  says:  "A  purchase  or  acqui- 
sition may  also  accrue  from  the  fraud  and  folly  of  another,  as 
where  persons,  by  malice  or  ignorance,  build  with  their  own 
timber  on  another's  soil,  or  where  they  plant  or  engraft  trees, 

4  Inst.  2,  1,  29  (Sandars'  Ed.) ;  D.,  41,  1,  7,  10;  id.,  47,  3,  1.  Praeterea 
id  quod  in  solo  nostro  ab  aliquo  aedificatum  est,  quamvis  ille  suo  nomine 
aedifi  caverit,  iure  naturali  nostrum  fit,  quia  superficies  solo  cedit.  Gai.,  2, 
73. 

Binst.  2,  1,  30,  Sandars'  Ed.;  D.  41,  1,  7,  12, 

See  Code  Nap.,  §§  554,  555;  Civil  Code  of  La.,  Art.  499,  500;  2  Ersk. 
Inst.  t.  1,  §  15;  3  id.  t.  1,  §  11  ;  Bell  Com.,  §  937;  Miller  v.  Michoud,  11 
Eob.  (La.),  225  (1845);  Poche  v.  Theriot,  23  La.  Ann.,  137  (1871); 
Slack  V.  Gay,  22  id.,  387  (1870).  [See  Jackson  v.  Ludeling,  99  U.  S., 
513    (1878).] 

[But  if  a  building  is  permanently  fixed  upon  another  man  'a  ground,  the 
builder  believing  the  ground  to  V)e  his  own,  he  may  reclaim  the  materials 
when,  from  any  cause,  such  building  is  demolished.  Hadley's  Eomau 
Law,  172.] 

"Book  2,  ch.  2,  see.  6,  p.  85b.  (Nichols'  ed.,  vol.  1,  p.  217).  See,  also, 
Bract.  Lib.  2,  chap.  2,  §§  4,  6,  fol.  9  b.  10.    Fleta  Lib.  3,  c.  2^  §  12,  fol.  176. 

78 


CHAP.  II.  J  ANNEXATIONS  ALIENO  SOLO.  *53 

or  SOW  their  grain  in  another's  land  without  the  leave  of  the 
owner  of  the  soil.  In  such  cases  what  is  built,  planted  and  sown, 
shall  belong  to  the  owner  of  the  soil  upon  the  presumption  of  a 
gift;  for  there  is  a  great  presump*tion  that  such  build-  [*53] 
ers,  planters  or  sowers^  intend  that  what  is  so  built,  planted  or 
sown,  should  belong  to  the  owners  of  the  soil,  especially  if  such 
structures  are  fixed  with  nails,  or  the  plants  or  seeds  have  taken 
root.  But  if  any  one  becomes  aware  of  his  folly,  and  speedily 
removes  his  timber  or  his  trees  before  our  prohibition  comes 
against  his  removing  them,  and  before  the  timber  is  fastened 
with  nails,  or  the  trees  have  taken  root,  he  may  lawfully  do  so." 
This  statement  of  the  law,  as  will  be  seen  in  the  course  of  the 
chapter,  is  in  most  respects  the  law  of  England  and  the  United 
States  at  the  present  day. 

The  distinction  recognized  by  the  Roman  civil  law  between 
the  cases  of  erections  alieno  solo,  made  by  one  in  possession 
bona  fide  and  without  notice  of  any  adverse  title,  and  those  made 
by  one  who  knew  that  he  was  not  the  owner  of  the  soil,  has  not 
been  generally  adopted  by  the  common  law  of  England  or  the 
United  States,  according  to  the  strict  rule  of  which  the  owner  of 
the  soil  recovered  it  in  ejectment  without  being  subject  to  the 
obligation  of  paying  for  improvements  made  thereon  by  the 
adverse  possessor,  such  improvements  being  regarded  as  annexed 
to,  and  forming  a  part  of,  the  freehold.'^  An  adverse  possessor 
makes  improvements  upon  the  land  at  his  peril,  and  such  im- 
provements constituting  a  part  of  the  soil  do  not  even  constitute 
a  sufficient  consideration  to  support  an  express  promise  by  the 
owner  of  the  land  to  pay  for  them.*^  However,  after  recovery 
in  ejectment,  in  an  action  at  law  for  the  mesne  profits,  which 
is  a  liberal  and  eciuitable  action  allowing  of  every  kind  of 
equitable  defence,''  it  is  hold  that  the  value  of  permanent  and 
valuable  improvements  made  in  good  faith  by  the  bona  fide  pos- 
sessor, may  be  recouped  to  the  extent  of  the  rents  and  profits 
claimed  by  the  plaintiff.^''     And  a  court  of  equity,  in  a  bill  for 

7  2  Kent  Com.,  *334;  Blackw.  Tax  Titles,  587. 
sFrear  v.  HardcnberKli,  r,  John.,  272  (1810). 

oPer  Kent,  J.,  in  Murray  v.  Gouverneur,  2  John.  Cas.,  442   (1800). 
10  See  2  Kent  Com.,  335;  Coulter's  Case,  5  Co.,  30  b   (1598);  Green  v. 
Biddlc,   8   Wheat.,  81,   82    (1823)  ;    ITvUf.n  v.   Brown,   2  Wash.   C.   C,   165 

79 


•54  THE  L.VW  OF  FIXTURES.  [CHAP.  11. 

[*54J  rents  and  profits  after  a  recovery  at  *law  against  a  hona 
fide  possessor  for  a  valuable  consideration,  will  deduct  from  the 
amount  to  be  paid  the  value  of  beneficial  improvements.^ ^  A 
court  of  equity  will  in  some  other  cases  allow  compensation  for 
improvements  made  by  a  bona  fide  possessor,  on  the  ground  that 
it  would  be  a  fraud  for  the  owner  of  the  land  to  avail  himself 
thereof  without  making  compensation.^  2 

The  subject  has  also,  to  some  extent,  been  regulated  by 
statutes,  variously  denominated  "betterment,"  "improvement," 
and  "occupying  claimant"  laws,  enacted  for  the  purpose  of 
remedying  in  some  respects  the  harshness  of  the  common  law 
rule,  and  more  nearly  assimilating  it  to  the  equitable  rules  of  the 
civil  law  upon  this  subject.^ ^ 

To  the  maxim  quicquid  plantatur,  &c.,  before  quoted,  there 
are,  however,  even  at  the  common  law,  various  exceptions 
which  have  been  rendered  necessary  by,  and  have  accordingly 
come  into  existence  with,  the  increase  in  importance  of  per- 
sonal property,  and  the  trades  connected  therewith.  These  ex- 
ceptions will  be  considered  in  their  proper  places  in  the  course 
of  the  work. 

With  reference,  however,  to  the  subject  of  this  chapter,  which 
relates  to  questions  arising  between  the  owner  of  the  freehold 
and  strangers,  i.  e.,  persons  sustaining  no  contract  relations,  ex- 

(1808) ;  Jackson  v.  Loomis,  4  Cow.,  168  (1825) ;  Dowd  v.  Fawcett,  4  Dev., 
95    (1833). 

[The  right  of  the  defendant  to  an  allowance  for  fixtures  can  not  be 
impaired  by  plaintiff  permitting  former  lessees  of  the  defendant  to  remove 
a  portion  of  the  fixtures.     Ege  v.  Kille,  84  Pa.  St.,  333,  341    (1877).] 

11  Green  v.  Biddle,  8  Wheat.,  77  (1823);  Bright  v.  Boyd,  1  Story,  478, 
495  (1841);  Herring  v.  Pollard,  4  Humph.,  362  (1843);  Mathews  v.  Davis, 
6  Humph.,  324   (1845) ;  2  Kent  Com.,  335. 

12  See  1  Story's  Eq.  Jur.,  §  388;  2  id.,  §  1237;  Blaekw,  Tax  Titles,  587 
et  seq.,  and  cases  cited,  for  a  more  full  discussion  of  the  subject,  any  fur- 
ther consideration  of  it  here  being  beyond  the  scope  of  this  work.  In 
Atty.  General  v.  Baliol  College,  9  Mod.,  411  (1744),  there  is  a  dictum  per 
Ld.  Hardwicke,  that  "where  a  man  suffers  another  to  build  upon  his  land, 
and  stands  by  and  makes  no  objection,  or  shows  his  title  *  *  *  the 
maxim  in  such  cases  is,  solum  cedit  aedificio;  *  *  *  those  decrees 
have  been  where  a  man  builds  upon  another's  land  having  no  title."  See, 
also,  1   Story's  Eq.  ,Tur.,  §§   388,   389,  and  cases  cited. 

13  See  Blaekw.  Tax  Titles,  590  et  seq.;  Kev.  Stats.  111.  (1874),  p.  449, 
§§  55  et  seq.;  2  Comp.  Laws  Mich.  (1871),  §§  6252  et  seq. 

80 


CHAP.  II.]  ANNEXATIONS  ALIENO  SOLO.  *55 

press  or  implied,  with  the  owner  of  the  soil,  the  rule  is  applied 
with  considerable  rigor.  With  respect  to  erections  or  additions 
made  by  the  owner  of  the  soil  with  the  *materials  of  [*55] 
another,  it  is  held,  that  so  long  as  the  identity  of  the  original 
materials  can  be  proved,  the  right  of  the  original  owner  in  the 
property  is  preserved,  and  is  not  gained  by  another  by  accession. 
The  owner  may  pursue  his  property  wherever  he  can  trace  it. 
But  when  the  property  has  lost  its  identity,  it  ceases  to  have  a 
legal  existence  as  a  chattel  and  may  not  be  recaptured.^* 

"Cross  V.  Marston,  17  Vt,,  533  (1846);  White  v,  Twitehell,  25  Vt.,  620 
(1853).  In  this  ease  it  was  held  that  a  bar  or  pole  tortiously  taken  and 
used  in  making  a  staging  to  shingle  a  barn,  being  simply  secured  in  its 
place  by  a  nail,  was  not  lost  to  the  owner,  who  might  recapture  it  without 
notice  to  the  taker,  doing  no  more  damage  to  the  staging  than  was  neces- 
sary to  repossess  it.  In  Cross  v.  Marston,  supra,  a  case  of  drawers  and 
the  sash  of  a  show  case  were,  by  the  consent  of  the  owner  of  them,  placed 
in  a  building  which  was  being  fitted  up  by  its  owner  for  a  book  store,  and 
the  case  of  drawers  was  by  the  owner  of  the  building  fastened  by  nails  to 
the  wall,  and  the  sash  was  used  to  cover  an  open  book  case  permanently 
fastened  to  the  wall  of  the  building,  the  sash  sliding  in  a  place  before  the 
book  case  and  fastened  in  by  strips  of  boards  fastened  above  and  below, 
both  case  and  sash  being  fastened  in  such  a  manner  that  they  could  bo 
removed  without  injury  to  the  building  or  themselves.  The  owner  of  the 
building  then  leased  it  for  a  book  store,  and  it  was  occupied  by  the  lessee 
as  such  for  five  years,  the  articles  in  question  remaining  in  the  same  situa- 
tion, when  the  owner  of  the  building  leased  it  in  the  same  condition  to  the 
defendant,  who  occupied  it  as  lessee  for  four  years,  when  the  owner  sold 
and  conveyed  the  premises  to  him  by  warranty  deed,  describing  the  prem- 
ises as  "the  land  and  building  thereon  standing  with  the  appurtenances," 
etc.  Meld,  that  the  case  and  sasli  still  remained  the  personal  property  of 
the  original  owner,  and  that  he  might  recover  them  in  trover  against  the 
purchaser  of  the  building,  the  articles  being  mainly  a  part  of  the  furniture 
of  the  building,  and  not  so  attached  to  the  freehold  as  to  have  lost  their 
identity. 

[A  house  placed  by  a  wrongdoer  upon  a  stone  foundation  upon  his  own 
land,  but  which  can  be  removed  without  injury  to  the  house  or  to  the  land, 
can  be  recovered  by  its  owner.  Central  Branch  R.  R.  Co.  v.  Fritz,  20  Kan., 
430,  439   n878).l 

[Saw-mill  machinery  which  is,  without  the  consent  of  the  owner,  taken 
and  attached  to  realty  by  the  lamlownor,  remains  personal  property.  Gill 
V.  DeArmont,  90  Mich.,  425,  430   (1892).] 

[The  manufacturers  of  a  machine  consigned  it  to  themselves  in  care 
of  a  contractor  for  the  purpose  of  having  it  tested  in  a  mill  for  which 
the  contractor  had  agreed  to  furnish  such  n  mnchino.  Tlic  contractor 
placed  the  machine  in  position,  and  attached  it  to  the  floor  by  screws,  and 

6  81 


•55  THE  LAW  OP  FIXTURES.  [CHAP.  II. 

connected  by  belting  with  the  shafting.  The  millowners  had  notice  of  the 
facts.  Held,  that  the  machine  had  not  been  so  incorporated  with  the 
building  as  to  lose  its  identity,  and  that  the  manufacturers  had  not  lost 
their  property  therein.  Walker  v.  Grand  Rapids  Mill  Co.,  70  Wis.,  92 
(1S87).] 

[Where  an  ice  machine  is  attached  to  realty  by  the  landowner  without 
the  consent  of  the  owner  of  the  chattel,  it  remains  personal  property  as 
between  the  parties.  San  Antonio  Brew.  Ass'n  v.  Arctic  Mach.  Co.,  81 
Tex.,  99,  103   (1891).] 

So,  a  cloth  covering  to  the  bed  of  a  billiard  table,  which  is  so  attached 
upon  and  fastened  to  the  table  as  to  be  capable  of  being  removed  without 
injuring  the  table,  is  not  so  annexed  thereto  by  accession  as  to  be  insep- 
arable by  one  who  put  it  there  under  a  contract  of  sale,  which  he  has  a 
right  to  rescind  on  account  of  fraud.  Perkins  v.  Bailey,  99  Mass.,  61 
(1868)  ;  see,  also,  Betts  v.  Lee,  5  John.,  348  (1810)  ;  Mills  v.  Eedick,  1 
Neb.,  437  (1871);  Stevens  v.  Briggs,  5  Pick.,  177  (1827);  2  Kent  Cora., 
363;   D'Eyncourt  v.  Gregory,  L.  R.,  3  Eq.,  382,  394   (1866). 

[Motors,  controllers,  and  poles  upon  electric  cars,  which  can  be  removed, 
leaving  the  cars  as  they  were  originally,  and  which  can  be  applied  to  any 
street  railway  car,  do  not  pass  under  a  prior  mortgage  covering  the  cars, 
title  to  the  apparatus  having  been  retained  by  the  seller  thereof.  General 
Electric  Co.  v.  Transit  Co.,  57  N.  J.  Eq.,  460,  465   (1898).] 

[The  sale  of  a  dredge  "and  appurtenances"  does  not  include  a  pump 
temporarily  attached  thereto.  Gullman  v.  Sharp,  88  Supr.  Ct.  (81  Hun), 
462    (N.  Y.,  1894).] 

See  the  subject  of  title  by  accession  further  considered,  with  reference  to 
the  subjects  of  alluvion,  confusion  and  admixture  of  goods,  etc.,  in  Inst., 
Lib.  2,  t.  1,  §  20,  et  seq.;  Gai.,  2,  70,  et  seq.;  Code  Nap.,  §  556,  et  seq.; 
Bell  Com.,  §  934,  et  seq.;  2  Ersk.,  Inst.,  t.  1,  §  14;  2  Black.  Com.,  261,  404; 

2  Kent  Com.,  360 ;  3  id.,  428 ;  Am.  Law  Journ.,  307 ;  Gifford  v.  Yarborough, 
5  Bing.,  163  (1828)  ;  s.  c,  in  K.  B.,  3  B.  &  C,  91;  Blewitt  v.  Tregonning, 

3  Ad.  &  E.,  554  (1835).  [Lacrustine  Fertilizer  Co.  v.  Lake  Guano  Co.,  82 
N.  Y.,  476,  481  (1880),  aff'g  26  Supr.  Ct.  (19  Hun),  47,  52  (1879); 
Boileau  v.  Heath  [1898],  2  Ch.,  301,  305.] 

[Where  the  third  story  of  a  building  is  conveyed  for  the  life  of  the 
building,  and  the  building  is  destroyed  by  fire  leaving  the  walls  standing, 
the  walls  of  the  third  story  become  the  property  of  the  owner  of  the  land 
and  the  two  lower  stories.  Ainsworth  v.  Lakin,  180  Mass.,  397,  398 
(1902).] 

[That  wild  bees  and  honey  in  a  tree  belong  to  the  landowner,  see  Fisher 
V.  Steward,  Smith,  60,  61   (N.  H.,  1804).] 

Where  large  masses  of  stone  had  from  time  to  time  fallen  from  some 
cliffs  above  upon  copyhold  land,  and  had  become,  some  wholly,  some  par- 
tially, and  some  not  at  all,  imbedded  in  the  earth,  there  being  no  evidence 
to  show  when  any  particular  portion  had  fallen,  but  the  last  fall  having 
been  some  thirty  or  forty  years  ago,  and  prior  to  the  time  the  defendant 
took  ^h?  fopyhold,  it  wa§  held,  that  thev  were  a  portion  of  the  soil  and 

83   ' 


CHAP,  n.]  ANNEXATIONS  ALIENO  SOLO.  *56 

*But  its  physical  identity  need  not  in  all  cases  be  so  lost  [*56] 
that  it  is  incapable  of  being  restored  into  its  original  condition : 
thus,  if  a  man  should  convert  a  quantity  of  bricks,  and  erect 
them  into  a  house,  these  bricks  would  have  lost  their  legal 
identity  as  chattels,  and  would  be  incapable  of  legal  recaption 
by  their  original  owner,  though  perhaps  physically  capable  of 
being  restored  to  their  original  condition.^     The  nature  of  the 

the  property  of  the  lord,  and  if  removed  by  the  copyholder,  trover  would 
lie  therefor.  Dearden  v.  Evans,  5  M.  &  W.,  11  (1839).  See  3  Campb. 
Lives  of  the  Chief  Justices,  26  note,  where  reference  is  made  to  a  French 
decision,  that  a  stone  falling  from  the  heavens  belongs  to  the  finder,  and 
not  to  the  owner  of  the  field  in  which  it  falls.  [See,  also,  20  Albany  Law 
J.,  299  (1879);  13  Irish  Law  T.,  381  (1879);  4  Eev.  Leg.,  424  (1898). 
An  aerolite  belongs  to  the  owner  of  the  soil.  Goddard  v.  Winchell,  86 
Iowa,  71  (1892).  Aerolites  upon  &  highway  belong  to  the  owner  of  the 
fee.  Maas  v.  Amana  Soc,  Chicago  Tribune  of  July  9,  1877,  p.  2  (Iowa, 
1877) ;   s.  C,  16  Albany  Law  J.,  76.] 

[A  boat  embedded  in  the  soil  about  two  thousand  years  belongs  to  the 
owner  of  the  land.     Elwes  v.  Brigg  Gas  Co.   (1886),  33  Ch.  t>.,  562.] 

[Gold  bearing  quartz  buried  in  the  ground  belongs  to  the  landowner  as 
against  the  lessee  who  found  it.  Ferguson  v.  Eay,  77  Pac,  600  (Ore., 
1904).] 

[See,  also.  South  Staffordshire  Waterworks  v.  Sharman  (1896),  65  L.  J., 
Q.  B.,  460,  where  two  gold  rings  found  by  a  laborer  in  some  mud  thrown 
out  while  cleaning  a  pool,  were  held  to  belong  to  the  landowner.  And  see 
Burdick  v.  Chesebrough,  94  App.  Div.,  532,  537  (X.  Y.,  1904);  7  Law 
Notes,  160  (N.  Y.,  1903),  that  dishes  buried  about  one  hundred  and  fifty 
years  ago  belong  to  the  landowner  as  against  his  lessee  who  found  them.] 

[When  the  water  of  a  flowing  stream  is  congealed,  the  ice  attached  to 
the  soil  constitutes  a  part  of  the  land,  and  belongs  to  the  owner  of  the 
bed  of  the  stream.  Washington  Ice  Co.  v.  Shortall,  101  111,,  46,  55  (1881). 
See,  further,  on  the  subject  of  ice:  Brooklyn  v.  Smith,  104  111.,  429,  439 
(1882);  Brookvillc  Co.  v.  Butler,  91  Ind.,  134  (1883);  Julien  v.  Wood- 
small,  82  Ind.,  568,  572  (1882);  State  v.  Pottmeyer,  33  Ind.,  402,  403 
(1870);  Marsh  v.  McNider,  88  Iowa,  390,  395  (1893);  Slingerland  v. 
International  Contracting  Co.,  43  App.  Div.,  215,  224  (N.  Y.,  1899)  ; 
Swan  V.  Goff,  39  App.  Div.,  95  (N.  Y.,  1899)  ;  Dodge  v.  Berry,  33  Snpr. 
Ct.  (26  Ilun),  246,  248  (N.  Y.,  1882);  Myor  v.  Whitakor,  55  How.  Pr., 
376,  380  (N.  Y.,  1878);  Reysen  v.  Roate,  92  Wis.,  543,  544  (1896).] 

1  Cross  V.  Marston,  17  Vt.,  533,  540  (1845),  per  Ilebard,  J.  See,  also, 
Peirce  v.  Goddard,  22  Pick.,  559  (1839);  Moore,  20;  Bro.  Abr.  tit.  Tres- 
pass pi.  23;  2  Kent  Com.,  363.  [See,  also,  Strubbeo  v.  Cincinnati  R 'y, 
78  Ky.,  481,  486  (1880).]  In  Brooke's  Abr.  Trespass,  pi.  23,  above  cited, 
it  is  said  that  "if  a  piece  of  timber,  which  was  illegally  taken  from  J.  S., 
has  been  hewed,  trespass  docs  not  lie  against  J.  S.  for  retaking  it.     But 

83 


♦56  THE  LAW  OF  FIXTURES.  [OHAP.  U. 

if  a  piece  of  timber,  which  was  illegally  taken,  has  been  used  in  building 
or  repairing,  this,  although  it  is  known  to  be  the  piece  which  was  taken, 
can  not  be  retaken,  the  nature  of  the  timber  being  changed;  for,  by  annex- 
ing it  to  the  freehold,  it  becomes  real  property." 

[The  owner  of  building  material  executed  a  bill  of  sale  of  the  same, 
but  retained  possession.  Such  material  was  in  an  uncompleted  house  of 
the  seller,  and  ho  afiBxed  part  of  it  to  the  house,  and  then  sold  the  house 
to  one  who,  in  good  faith,  believed  that  the  material  passed  with  the  land, 
and  who  used  a  part  thereof  in  completing  the  building.  Held,  that  the 
buyer  of  the  building  material  could  not  recover  from  the  grantee  for  tlie 
property  affixed  to  the  freehold.     Geirke  v.  Schwartz,  45  N.  Y.  Supp.,  928 

(1897).] 

[Where  ties  have  been  taken  by  a  sub-contractor  for  the  construction 
of  a  railroad,  the  owner  thereof  can  not  recover  from  the  railroad  com- 
pany after  the  road  has  been  turned  over  to  it  as  realty,  although  the  ties 
can  be  identified,  the  company  not  having  been  a  party  to  the  conversion. 
Detroit  &  B.  C.  K.  R.  Co.  v.  Busch,  43.  Mich.,  571    (1880).] 

[Where  a  house  is  stolen  from  a  lot  after  a  foreclosure  sale,  but  before 
the  time  of  redemption  has  expired,  and  annexed  to  an  adjacent  lot,  what- 
ever equitable  lien  the  purchaser  at  the  foreclosure  sale  might  have  had 
upon  such  house,  is  lost  by  a  delay  of  a  year  and  eight  months  during 
which  time  the  house  has  passed  into  the  hands  of  an  innocent  purchaser, 
Fisher  v.  Patterson,  197  111.,  414,  417  (1902),  aff 'g  99  III.  App.,  70 
(1900).  See,  also,  Nicholson  v.  New  Zealand  Bank,  12  N.  Z.  L.  E.,  427, 
440   (1894),  in  regard  to  iron  water  pipes.] 

[Where  a  contractor,  who  had  agreed  to  construct  a  mill  for  land- 
owners, bought  machinery  therefor  under  an  agreement  that  the  seller  was 
to  retain  property  therein  until  paid,  but  the  seller  knew  that  the  ma- 
chinery was  to  be  put  into  a  mill  of  third  persons,  the  seller  will  be 
estopped  from  asserting  that  the  contractor  had  no  title  to  the  machinery 
as  against  the  landowners,  who,  without  notice,  had  advanced  money  on  the 
contractor's  account.     Jenks  v.  Colwell,  66  Mich.,  420    (1887).] 

In  Shoemaker  v.  Simpson,  Supr.  Ct.  of  Kansas  (1875),  3  Cent.  Law 
Jour.  132,  the  property,  railroad  iron,  was  annexed  to  the  land  without  the 
consent  either  of  the  owner  of  the  iron  or  the  land,  and  the  rule  was  de- 
clared to  be  that  an  innocent  person  can  not  be  deprived  of  his  title  to 
personal  property  against  his  consent  by  having  it  attached,  without  his 
consent,  to  the  real  estate  of  another  by  a  third  person,  where  such  per- 
sonal property  can  be  removed  without  any  great  inconvenience,  and  with- 
out any  substantial  injury  to  the  real  estate.  [Shoemaker  v.  Simpson,  16 
Kan.,  43  (1876)  ;  Poison  v.  Degear,  12  Ont.,  275,  280  (1886)  ;  Alexander 
V.  Cowie,  19  N.  Brunsw.,  599  (1880) ;  see,  also,  Cochran  v.  Flint,  57  N.  H., 
514,   544    (1877).] 

[Bricks  and  rails  were  upon  land  at  the  time  it  was  sold  on  execution. 
Afterwards,  a  tenant  of  the  purchaser  used  the  bricks  to  build  a  chimney, 
and  the  rails  to  build  a  fence.  Held,  that  the  original  owner  of  the  land 
should  make  a  demand  for  the  privilege  of  removal,  and,  iu  case  of  refusal, 

84 


CHAP.  II.]  ANNEXATIONS  ALIENO  SOLO.  *57 

material  and  its  legal  identity  would  seem  sufficiently  changed 
by  its  employment  for  the  purpose  for  which  it  was  manufac- 
tured, where  it  can  not  be  separated  from  the  realty  without 
material  injury  to  itself  and  the  realty.  And,  though  such 
building  should  afterwards  be  destroyed  from  any  cause,  it  is  be- 
lieved that,  by  the  common  law,  the  materials  so  convert*ed  [*57] 
would  not  revest  in,  and  could  not  be  then  reclaimed  by  their 
original  owner,  as  would  be  the  case  by  the  Roman  civil  law,^ 
but  would  belong  to  the  owner  of  the  soil.2 

an  action  would  lie  for  preventing  an  exercise  of  the  right  to  sever. 
Thweat  v.  Stamps,  67  Ala.,  96,  98   (1880).] 

[The  lien  of  a  recorded  chattel  mortgage  upon  machinery  can  not  be 
defeated  by  the  machinery  being  attached  by  a  third  party  to  his  land. 
Grand  Island  Co.  v,  Frey,  25  Neb.,  66,  70   (1888).] 

[Where  chattels  are  sold  to  the  grantee  of  land  under  contract,  the 
unpaid  seller,  having  reserved  title,  does  not  lose  his  property  as  against 
the  grantor.  Harris  v.  Hackley,  127  Mich.,  46  (1901).  Likewise,  where 
the  buyer  erroneously  thinks  he  is  entitled  to  purchase  the  land  to  which 
the  chattels  are  annexed.  Stevens  Mfg.  Co.  v.  Barfoot,  9  Ont.,  692,  696 
(1885).  Likewise,  as  against  the  landlord,  retaking  possession  of  the 
premises,  the  buyer  having  been  a  tenant.  Palmateer  v.  Eobinson,  60  N.  J. 
Law,  433,  437   (1897);  Lange  v.  Pisch,  9  N.  Y.  Misc.,  475   (1894).] 

[The  fact  that  the  title  to  real  estate  is  in  a  husband  and  wife  jointly, 
who  hold  it  by  the  entirety,  gives  the  wife  no  interest  in  a  boiler  sold  to 
the  husband,  the  seller  retaining  title  and  knowing  that  such  boiler  was 
to  be  attached  in  a  permanent  way.  Schellenberg  v.  Detroit  Heating  Co., 
130  Mich.,  439    (1902).] 

[A  mill-wright  made  a  contract  to  furnish  machinery  for  a  grist  mill. 
By  fraudulent  representations  he  purchased  such  machinery  upon  the  credit 
of  the  mill-owners,  and  incorporated  the  machinery  into  tlie  mill.  The 
sellers  of  the  machinery  brought  trover  against  the  mill-owners.  Held, 
that  the  machinery  had  become  a  part  of  the  realty,  and  title  thereto  was 
in  the  mill-owners.  Woodruff  &  Beach  Iron  Works  v.  Adams,  37  Conn., 
233   (1870).] 

1  See  arte,  p.  *51. 

2  Sec  Moore  v.  Cunningham,  23  Til.,  328  (1866).  This  case  docs  not  de- 
cide the  point  above  stated,  but  may  serve  to  illustrate  the  subject  some- 
what. In  this  case,  where  one  who  held  a  contract  for  building  a  court- 
house, put  into  the  walls  brick  not  in  accordance  with  the  contract,  and 
the  county  court  notified  tlie  contractor  to  take  down  the  defective  ma- 
terial and  work  and  rebuild  the  same,  and  afterwards  the  contract  was 
declared  forfeited  and  relet  to  claimants  who  were  to  furnish  all  materials 
except  those  already  laid  up,  and  who  took  down  the  walls  and  piled  up  the 
brick,  which  were  levied  upon  by  the  phiintiff  on  execution  against  the 
original  contractor,  it  was  held,  that  the  brick  as  fast  as  laid  in  the  wall 

85 


*58  TUE  LAW  OF  FIXTURES.  [CHAP.  U. 

With  respect  to  erections  and  annexations  made  by  a  stranger, 
Avith  his  own  materials  upon  the  soil  of  another,  without  his 
consent,  the  rule  of  law  hereinbefore  stated,  is,  as  between  the 
owner  of  the  soil  and  the  one  making  such  annexations,  quite 
uniformly  applied,  that  the  owner  of  the  materials  loses  his 
property  because  he  is  presumed  to  have  voluntarily  parted  with 
it,  or  to  have  intended  it  as  a  gift  to  the  owner  of  the  soil.^ 
Thus  it  has  been  often  held  that  a  building  or  other  annexa- 
tion placed  upon  the  land  of  another  without  his  previous  con- 
sent, and  without  any  contract  with  him,  express  or  implied, 
that  it  may  remain  the  property  of  the  builder  as  a  personal 
chattel,  becomes  a  part  of  the  realty,  and  may  not  be  removed 
by  the  party  erecting  it  or  his  vendee,  as  against  the  owner  of 
[*58]  the  soil,"*    And  the  doctrine  holds  as  well  with  respect  *to 

became  part  of  the  freehold,  and  the  title  to  the  brick  vested  in  the  county, 
and  being  taken  down  by  subsequent  contractors  under  directions  from  the 
county,  they  did  not  again  become  the  property  of  the  original  contractor, 
and  hence  were  not  liable  for  his  debts.  [Stevens  v.  Barfoot,  13  Up.  Can. 
App.,  366   (1886).] 

[Where  a  pier  was  erected  in  navigable  waters  with  stone  taken  from 
adjoining  land  of  which  the  builders  were  not  the  owners,  such  stone  be- 
longs to  the  owner  of  the  land  from  which  it  was  taken,  upon  his  right- 
fully removing  the  pier  as  a  nuisance.  Larson  v.  Furlong,  63  Wis.,  323, 
326  (1885).] 

3  See  authorities  already  cited,  ante  in  this  chapter.  Also  Ferard  Fixt., 
12.  [Black  V.  Black,  30  N.  J.  Eq.,  215  (1878)  ;  Houzik  v.  Delaglise,  65 
Wis.,  494   (1886).] 

4  Stillman  v.  Hamer,  8  Miss.,  421  (1843)  ;  First  Parish  in  Sudbury  v. 
Jones,  8  Cush.  189  (1851);  Childress  v.  Wright,  2  Cold.,  350  (1865); 
Thayer  v.  Wright,  4  Den.,  180  (1847)  ;  Goddard  v.  Bolster,  6  Me.,  427 
(1830);  Treadway  v.  Sharon,  7  Nev.,  37  (1871);  this  was  the  case  of  a 
saw  mill  built  upon  government  land,  on  the  faith  of  the  right  of  pre- 
emption of  the  land  on  which  it  stood,  but  which  was  afterwards  lost  by 
laches,  and  it  was  held,  that  the  occupant  had  no  right  to  remove  the  same. 
See,  also,  Madigan  v.  McCarthy,  108  Mass.,  376  (1871)  ;  Huebschmann  v. 
McHenry,  29  Wis.,  655  (1872);  Mitchell  v.  Billingsley,  17  Ala.,  391 
(1850);  Crest  v.  .Tack,  3  Watts,  238  (1834);  Murphy  v.  Marland,  8  Cush., 
575  (1851);  Kichtmyer  (or  Eichmyer)  v.  Morss,  3  Keyes,  349  (1867); 
S.  C,  4  Abb.  Ct.  App.,  Dec,  55;  5  Abb.  Pr.  (N.  S.),  44;  37  How  Pr.,  388; 
Beers  v.  St.  John,  16  Conn.,  322  (1844)  ;  Sparks  v.  Spieer,  1  Ld.  Eaym., 
738  (1698)  ;  R.  c,  Salk,  648,  in  the  former  report  of  which  it  is  said  that 
"if  a  man  be  hung  in  chains  upon  my  land,  after  the  body  is  consumed,  I 
shall  have  gibbet  and  chain;"  Master,  etc.,  of  Clare  Hall  v.  Harding,  6 
Hare,  273,  296   (1848);   Munro  v.  Taylor,  8  Hare,  60    (1848);   Boiling  v. 

86 


CHAP.  II.]  ANNEXATIONS  ALIENO  SOLO.  *58 

Whittle,  Ala.  Sel.  Ca.,  268  (1861)  ;  Wentz  v,  Fincher,  12  Ired.  Law,  297 
(1851).  [Powers  v.  Harris,  68  Ala.,  409,  411  (1880);  Pomeroy  v.  Bell, 
118  Cal.,  635  (1897) ;  Kichards  v.  Moray,  133  Cal.,  437,  440  (1901)  ;  Dun- 
stedter  v.  Dunstedter,  77  111.,  580,  582  (1875)  ;  Bonney  v.  Foss,  62  Me.,  248, 
251  (1873);  Kenerson  v.  Colgan,  164  Mass.,  166  (1895);  Guernsey  v. 
Wilson,  134  Mass.,  482  (1883);  Morrison  v.  Berry,  42  Mich.,  389,  393 
(1880);  Welborn  v.  Spears,  32  Miss,,  138  (1856);  Jacoby  v.  Johnson,  120 
Fed.,  487,  489  (U.  S.  C.  C,  A.,  N.  J,,  1903)  ;  Doscher  v.  Blackiston,  7  Ore., 
143  (1879);  Houston,  E.  &  W.  T.  K'y  Co.  v.  Adams,  63  Tex.,  200,  209 
(1885);  Bonner  v,  Wiggins,  52  Tex.,  125  (1879);  Missouri  P.  K'y  Co.  v. 
Cullers,  81  Tex.,  382,  390  (1891);  Nicholstone  City  Co.  v.  Smalley,  21 
Tex.  Civ.  App.,  210  (1899) ;  see,  also,  Wheeler  v.  State,  109  Ala.,  56,  60 
(1895)  ;  Fischer  v.  Johnson,  106  Iowa,  181,  184  (1898)  ;  Bonson  v.  Jones, 
89  Iowa,  380,  388  (1893) ;  Commonwealth  v.  Brooks,  164  Mass.,  397 
(1895)  ;  Woods  v.  Wulf,  84  Minn.,  299  (1901)  ;  Fortescue  v.  Bowler,  55 
N.  J.  Eq.,  741  (1897) ;  Lacrustine  Fertilizer  Co.  v.  Lake  Guano  Co.,  82 
N.  Y.,  476,  481  (1880)  ;  Andrews  v.  Powers,  66  App.  Div.,  216  (N.  Y., 
1901);  Eead  v.  St.  Ambrose  Ch.,  137  Pa.  St.,  320  (1891);  Harrisburg  v. 
Hope  Fire  Co.,  2  Pearson,  269,  272  (Pa.,  1876)  ;  Henderson  v.  Ownby,  56 
Tex.,  647  (1882);  Harper  v.  Harper,  20  N.  Z.,  317  (1900).  Where  a 
husband  conducts  his  wife's  mill  without  other  compensation  than  a 
living,  and  annexes  a  boiler  and  an  engine  for  furnishing  motive  power 
during  low  water,  he  can  not  remove  the  same.  Albert  v.  Uhrich,  180  Pa. 
St.,  283  (1897).  A  building  was  constructed  by  the  Eussian-American 
Company  upon  land  belonging  to  Kussia.  Held,  that,  upon  the  cessation 
of  Alaska  to  the  United  States,  such  building  became  the  property  of  the 
United  States.  Kinkead  v.  United  States,  150  U.  S.,  483  (1893).  A  grant 
was  made  of  certain  timber  with  the  privilege  of  erecting  a  saw-mill  and 
other  necessary  buildings.  The  grantor  then  conveyed  the  land  excepting 
the  timber,  and  tho  right  to  erect  houses  and  mills  for  sawing  timber,  and 
"dwelling-houses."  Held,  that  a  dwelling-house  and  outhouses  erected 
by  the  grantee  of  the  timber  were  not  removable  by  him,  although  the 
other  structures  were.  .Johnson  v.  WilHnghby,  3  Tcnn.  Cas.  (Shannon), 
338  (1875).  A  partition  fence,  although  built  by  one  landowner,  becomes 
a  part  of  the  realty,  and  can  not  be  removed  by  him  at  pleasure.  Smith  v. 
Johnson,  76  Pa.  St.,  191,  196  (1874);  Stoner  v.  Hunsicker,  47  Pa.  St., 
514,  515  (1864).  The  rule  stated  in  the  text  applies  where  the  annexa- 
tions are  ma<lc  by  the  owner  of  a  majority  of  the  stock  in  a  corporation,  to 
a  building  owned  by  the  corporation.  Murray  v.  Bender,  125  Fed.,  705, 
711  (U.  S.  C.  C.  A.,  Mont,,  1903).  A  house  erected  by  a  trespasser  belongs 
to  the  landowner,  and  the  latter  is  not  guilty  of  malicious  niiHchiof  in 
tearing  it  down.  Maiono  v.  State,  79  Tenn.,  701  (1883),  Where  a  land- 
owner asked  for  a  decree  for  removing  from  the  ground  one  who  had 
erected  a  house  thereon  in  mala  fide,  the  court  observed  that  it  might  be  a 
question  how  far  tho  house  or  its  materials  were  removable.  TT:uuiltni)  v. 
Johnston  (1877),  14  Scot.  Law  Rep.,  298,  299.  Stone  flags  permanently 
laid  by  a  village  in  a  street,  the  abutting  lot-owner's  fee  extending  to  the 

87 


*58  TUE  hAW  OF  FIXTURES.  [CHAP.  II. 

midille  of  the  street,  belong  to  such  landowner,  and  may  not  bo  removed 
by  the  village  for  non-payment  of  the  assessment  therefor.  Piatt  v. 
Oneonta,  84  N.  Y.  Supp.,  699  (1903).  Where  a  village  constructs  a  plank 
sidewalk  by  the  side  of  a  lot,  the  village  authorities  have  no  right  to 
remove  it  without  the  consent  of  the  lot-owner,  no  matter  in  whom  the  fee 
in  the  street  resides;  and,  if  removed,  the  lot-owner  is  entitled  to  recover 
in  trespass  to  the  extent  of  his  injury,  not  exceeding  the  value  of  the  lot, 
the  removal  not  appearing  to  have  been  done  with  bad  motives.  Rogers  v. 
Randall,  29  jNIieh.,  41  (1874).  In  Meriam  v.  Brown,  128  Mass.,  391,  393 
(1880),  and  Hunt  v.  Missouri  P.  E'y  Co.,  76  Mo.,  115  (1882),  the  rule 
stated  in  the  text  was  applied  to  structures  erected  by  a  railroad  company; 
and  in  Chicago  Dock  &  Canal  Co.  v.  Garrity,  115  111.,  155,  171  (1885),  it 
was  held  that  a  railway  track  built  by  private  means  upon  a  street  the 
fee  of  which  is  in  the  city,  for  the  express  purpose  of  directly  benefiting 
the  builder,  was  not  within  the  private  control  of  such  builder;  but  in 
Illinois  Cent.  R.  R.  Co.  v.  Hoskins,  80  Miss.,  730,  738  (1902),  it  was  held 
that  a  track  laid  by  a  railroad  company  as  a  trespasser,  is  removable  by  it, 
as  such  track  is  laid  for  public  use,  and  the  company  acquires  a  mere 
easement;  and  no  distinction  is  to  be  made  between  a  main  line  and  a 
spur-track  to  reach  a  gravel  pit.]  A  house  built  by  a  society  upon  the 
land  of  another,  under  the  circumstances  stated  in  the  text  above,  but 
with  an  understanding  that  the  land  should  be  held  for  them,  and  an 
evident  expectation  that  it  would  after  a  while  be  conveyed  to  them, 
becomes  part  of  the  realty;  and  the  owner  of  the  land  has  an  insurable 
interest  in  such  house,  which  is  not  forfeited  by  his  consent  revoked  before 
the  sale,  that  the  house  should  be  sold  as  personal  property  on  an  execu- 
tion against  the  society.  Oakman  v.  Dorchester  Ins.  Co.,  98  Mass.,  57 
(1867).  [An  insurance  company  can  not  recover  from  a  railroad  company 
for  any  amount  paid  by  the  former  to  the  builder  of  a  house  upon  the 
railroad  company's  land,  such  house  having  been  built  without  authority 
and  set  on  fire  by  one  of  its  locomotives.  The  property  in  the  house  vested 
in  the  railroad  company,  and  as  the  builder  had  no  right  to  recover,  the 
insurance  company  could  not,  as  it  could  only  be  subrogated  to  the  rights 
of  the  builder.  Prescott  &  A.  C.  R'y  Co.  v.  Rees,  3  Ariz.,  317  (1892).] 
The  rule  above  stated  is  also  in  some  eases  applicable  to  the  assessment  of 
damages  in  proceedings  for  the  condemnation  of  land  for  public  purposes: 
thus,  where  a  railroad  company,  being  already  in  the  occupation  of  land 
with  its  track,  took  proceedings  to  acquire  the  title,  it  was  held,  that  if  the 
company  was  a  trespasser  in  laying  its  track,  any  fixtures  placed  thereon 
while  its  occupation  was  as  a  trespasser,  belonged  to  the  owner  of  the 
land,  and  that  the  railway  track  composed  of  rails,  ties,  etc.,  was  a  fixture, 
and  its  value  as  such  enhancing  the  value  of  the  land  for  the  beneficial 
enjoyment  thereof,  was  the  measure  of  compensation.  Van  Size  v.  Long 
Island  R.  R.  Co.,  3  Hun,  613  (1875);  Matter  of  Long  Island  R.  R.  Co., 
6  N.  Y.  Supr.  Ct.  E.,  298  (1875).  The  same  point  was  decided  in  Graham 
V.  Connersville,  etc.,  R.  R.  Co.,  36  Ind.,  463  (1871) ;  s.  c,  10  Am.  Rep.,  56, 
with  reference  to  a  railroad  depot  and  other  buildings;    [likewise   as  to 

88 


CHAP.  U.]  ANNEXATIONS  ALIENO   SOLO.  *58 

stone  piers.  Pennsylvania,  P.  &  B.  E.  Co.  v.  Trimmer,  31  Atl.,  310,  312 
(N.  J.  Ch.,  1895)] ;  and  in  United  States  v.  Land  in  Monterey  Co.,  47  Cal., 
515  (1874),  -with  reference  to  a  stone  lighthouse.  [In  proceedings  to 
condemn  land  for  a  Ufe  saving  station,  a  remainderman  is  not  entitled  to 
compensation  for  a  building  which  had  been  erected  by  the  United  States 
upon  the  land  in  the  lifetime  of  the  life  tenant,  and  which  was  removable 
as  against  such  life  tenant.  United  States  v.  Smith,  110  Fed.,  338  (U.  S. 
Dist.  Ct.,  N.  Y.,  1901)  ;  likewise  as  a  bridge  where  the  landowner  per- 
mitted the  erection  pending  the  adjustment  of  damages.  SulUvan  v. 
Lafayette  County,  58  Miss.,  790,  802  (1881);  and  as  to  a  schoolhouse 
built  in  good  faith  by  the  school  board.  Searl  v.  School  Dist.,  133  U.  S., 
553  (1890)  ;  see,  also,  Burns  v.  School  Dist.,  61  Neb.,  351  (1901),  as  to 
a  schoolhouse  not  being  covered  by  a  mortgage  on  the  land.]  But  where 
a  railroad  company,  under  proceedings  for  condemnation,  enters  upon  the 
land  under  an  order  of  court  for  that  purpose,  and  constructs  its  track 
(which  is  imbedded  in  the  soil)  across  the  land,  and  the  proceedings  are 
subsequently  dismissed,  and  new  proceedings  commenced  for  the  condemna- 
tion of  the  land  against  the  vendee  of  the  original  owner  of  the  land,  the 
owner  is  not  entitled  to  have  the  value  of  the  iron  and  ties  constituting 
the  track  included  in  his  damages  upon  the  final  condemnation,  the  pos- 
session of  the  company  when  the  track  was  laid  being  rightful.  California 
Pacific  K.  K.  Co.  v.  Armstrong,  46  Cal,,  85  (1873);  s.  c,  1  Cent.  Law 
Jour.,  452.  In  Louisiana,  it  is  held  that  a  railway  is  not  an  immovable, 
either  by  nature  or  destination,  if  the  soil  over  which  it  is  laid  belongs  to 
another,  and  that  the  rails  in  such  ease  do  not  become  immovable  by  being 
laid  down.  State  v.  Gulf  K'y  Co.,  3  Rob.,  513  (1843).  [Where  a  railroad 
company,  placing  structures  upon  land  of  another,  was  not  a  trespasser, 
the  courts  have  quite  uniformly  held  that,  in  subsequent  condemnation 
proceedings,  the  company  should  not  be  required  to  pay  for  such  improve- 
ments as  a  part  of  the  land;  and  a  company  is  not  a  trespasser  where, 
acting  in  good  faith,  it  has  obtained  the  consent  of  the  party  in  possession 
of  the  land,  although  such  party  was  a  mortgagor,  a  life  tenant,  or  hold- 
ing adversely,  or  where  such  structures  have  been  made  by  mistake.  San 
Francisco  &  N.  P.  E.  E.  Co.  v.  Taylor,  86  Cal.,  246,  248  (1890)  ;  California 
S.  E.  E.  Co.  v.  Southern  Pacific  E.  E.  Co.,  67  Cal.,  59,  62  (1885);  Charles- 
ton E'y  Co.  v.  Hughes,  105  Ga.,  1,  25  (1898);  Calumet  Eiv.  R'y  Co.  v. 
Brown,  136  111.,  322,  334  (1891);  Ellis  v.  Eock  Island  &  M.  C.  E.  E.  Co., 
125  711.,  82  (1888);  Emerson  v.  Western  Union  E.  E.  Co.,  75  111.,  176,  178 
(1875);  Skinner  v.  Ft.  Wayne,  T.  H.  &  S.  W.  E.  E.  Co.,  99  Fed.,  465 
(U.  S.  C.  C,  Ind.,  1900) ;  St.  Louis,  K.  &  S.  W.  E.  E.  Co.  v.  Nyce,  61 
Kan.,  394  (1900),  overruling  Briggs  v.  Chicago,  &c.,  E.  E.  Co.,  56  Kan., 
526  (1896);  Eitchic  v.  Kansas,  N.  &  D.  E'y  Co.,  55  Kan.,  36,  59  (1895); 
Cohen  v.  St.  Louis,  F.  S.  &  W.  E.  E.  Co.,  34  Kan.,  158  (1885);  Morgan's 
App.,  39  Mich.,  675  (1878);  .Alississippi  &  T.  E.  E.  Co.  v.  Devaney,  42 
Miss.,  555,  602  (1869);  North  Hudson  B.  Co.  v.  Booraem,  28  N.  J.  Eq., 
450  (1877),  overruling  Bonraom  v.  Wood,  27  N.  J.  Eq.,  371  (1877); 
Oregon   E.   &   N.   Co.   v.   Mosicr,    14    Ore.,   519    (1887);    St.    Jnhnsbury  & 

89 


*08  THE  LAW  OF  FIXTURES.  [CHAP.  11. 

L.  C.  R.  R.  Co.  V.  Willard,  61  Vt.,  134   (1888);   Aspinwall  v.  Chicago  & 
N.  W.  R'y  Co.,  41  Wis.,  474,  477   (1877);  see,  also,  VauIIuscn  v.  Omaha, 
B.  &  T.  R'y  Co.,  118  Iowa,  366,  380  (1902) ;  Atchison,  T.  &  S.  F.  R.  R.  Co. 
V.  Morgau,  42  Kan.,  23,  30   (1889);   Dows  v.  Congdon,  16  How.  Pr.,  571 
(N.   Y.,   1858);    Kennedy   v.   Milwaukee   &   St.   P.   R'y   Co.,   22   Wis.,   581 
(1868)  ;  but  it  was  held  in  Philadeli)hia,  K.  &  N.  E.  R.  R.  Co.  v.  Bowman, 
23  App.  Div.,  170   (1897),  aff'd  in  163  N.  Y.,  572   (1900),  that  where  a 
railroad   company  purchases   land   subject   to   a   mortgage,   and   lays   track 
thereon,  upon  foreclosure  of  such  mortgage,  the  company  being  a  party  to 
the  suit  and  not  asserting  any  right,  the  purchaser  at  the  foreclosure  sale 
acquires  all   of  the  improvements.     Where   a   railway  company  has  taken 
copyhold   lands   and  made   improvement   thereon,  a   subsequent   assessment 
of  the  compensation  to  be  paid  to  the  lord  of  the  manor,  should  have  no 
regard  to  the  improved  value  of  the  land.     Lowther  v.  Caledonian  R'y  Co. 
[1892],  1  Ch.,   73,  reversing   [1891]   3  Ch.,  443.     In  California  a  distinc- 
tion is  still  made  between  improvements  made  by  a  railroad  company  in 
good  faith  and  those  made  by  a  company  which  is  a  trespasser;  though  a 
company   is   only   considered   a   trespasser   where  it  enters   upon   land   not 
intending  to  condemn  it.     Albion  Riv.  R.  R.   Co.  v.  Hesser,   84  Cal.,  435, 
440   (1890);  but  in  most  states  no  distinction  is  now  made  in. such  cases, 
"the  maxim,  quicquid  plantatur  solo,  solo  cedit,  being  held  to  have  no  just 
application,   as  the  structures  were   dedicated,   not   to   the  use   and   enjoy- 
ment  of   the   freehold,  but   to   public  uses.     The   improvements   would   be 
inconvenient   to   the   landowner   so   long  as   they   remained  unsevered,   and 
valuable   to  him   only  as  personal  property.     Another   distinction  between 
the  company  and  an  ordinary  trespasser  is  that  the  latter  has  no  remedy 
by  which  he  may  acquire  the  use  and  enjoyment  of  or  title  to  lands  against 
the  will  of  the  owner,  and  the  application  of  the  strict  common  law  rule 
in  the  case  of  railroad  companies  might  result  in  encouragement  by  the 
landowner  of  delay  in  compelling  compensation.     Jones  v.  New  Orleans  & 
S.  R.  R.  Co.,  70  Ala.,  227,  231   (1881);   Newgass  v.  Railway  Co.,  54  Ark., 
140,  146  (1891);  Jacksonville,  T.  &  K.  W.  R'y  Co.  v.  Adams,  28  Fla.,  631 
(1891);  Chicago  &  Alton  R.  R.  Co.  v.  Goodwin,  111  III,  273,  282   (1884); 
Daniels  v.  C,  I.  &  N.  R.  Co.,  41  Iowa,  52   (1875)  ;  Toledo,  A.  A.  &  G.  T. 
R.  R.  Co.  V.  Dunlap,  47  Mich.,  456,  465   (1882);  Greve  v.  First  Div.  St.  P. 
&  P.  R.  R.  Co.,  26  Minn.,  66   (1879)  ;  Louisville,  N.  O.  &  T.  R.  R.  Co.  v. 
Dickson,  63   Miss.,   380,   385    (1885);   Preston  v.  Sabine,  &c.,  R'y  Co.,   70 
Tex.,  375  (1888)  ;  Texas  &  P.  R'y  Co.  v.  Hays,  3  Tex.  Ct.  App.,  Civ.  Cas., 
§  56   (1885)  ;  Seattle  &  M.  R.  R.  Co.  v.  Corbett,  22  Wash.,  189    (1900) ; 
Bellingham,  B.  &  B.  C.  R.  R.  Co.  v.  Strand,  14  Wash.,  144,  151    (1896)  ; 
Lyon  V.  Green  Bay  &  M.  R'y  Co.,  42  Wis.,   538,   545    (1877);    see,   also, 
Mitchell  V.  111.  &  St.  Louis  R.  R.  &  Coal  Co.,  85  111.,  566   (1877)  ;   Lake 
Whatcom  Logging  Co.  v.  Callvert,  73  Pac,  1128,  1130   (Wash.,  1903).     In 
Hendy  v.  Trinty  &  S.  R.  Co.,  24  Am.  &  Eng.  R.  R.  Cas.,  286,  287   (Tex., 
1886),  a  distinction  is  made  between  improvements  which  can  not  be  used 
by  the  landowner  in  connection  with  his  land,  such  as  railroad  track,  and 
those  which  the  landowner  can  use  without  disturbing  them,  such  as  build- 

90 


CHAP,  n.]  ANNEXATIONS  ALIENO   SOLO.  *58 

ings;  and,  in  condemnation  proceedings,  damages  should  be  allowed  for 
the  latter.  Kailroad  track  laid  without  authority  does  not  pass  under 
recovery  in  ejectment.  Justice  v.  Nesquehoning  K.  E.  Co.,  87  Pa.  St.,  28 
(1878).  Where  a  railroad  is  constructed  across  a  farm  without  right,  and 
the  owner  brings  an  action  for  the  trespass,  the  value  of  the  ties  and  rails, 
though  they  are  a  part  of  the  realty,  should  not  be  deducted  from  the 
injury  done  to  the  farm  unless  they  enhanced  its  value.  Schroeder  v. 
DeGraff,  28  Minn.,  299,  300  (1881).]  See,  also,  Pennybacker  v.  McDougal, 
48  Cal.,  160  (1874),  where  it  was  held  that  a  small  frame  building  called 
a  cabin,  erected  upon  the  land  of  the  United  States,  by  being  set  upon 
blocks  resting  upon  the  surface  of  the  ground  and  not  attached  thereto,  but 
removable  without  disturbing  the  soil,  is  personal  property,  not  passing 
with  the  land,  but  removable  by  the  builder  upon  his  leaving  the  land  after 
its  sale  by  the  United  States.  It  was  also  intimated  in  the  same  case,  that 
the  same  rule  applied  to  a  portable  fence  composed  of  parts  of  boards, 
resting  wholly  on  the  surface,  and  in  no  manner  annexed  to  the  freehold. 
These  two  cases  are  believed  to  be  opposed  to  the  weight  of  modern 
authority,  and  to  be  unsound  in  principle.  [In  McKiernan  v.  Hesse,  51 
Cal.,  594,  596  (1877),  a  saw-mill  was  held,  as  between  a  grantee  of  the  land 
from  one  who  receives  a  patent  from  the  United  States,  and  a  former 
tenant  of  one  in  possession  before  the  land  was  pre-empted,  to  be  a  struc- 
ture affixed  to  the  freehold  under  the  statute.  The  sills  of  the  mill  were 
imbedded  in  the  soil.  Two  boilers,  sixteen  feet  long,  without  the  frame- 
work of  the  mill,  were  secured  by  trestle-work  of  stone  and  mortar  resting 
upon  the  earth.  An  engine,  also  outside  the  framework  of  the  mill,  rested 
upon  a  long  timber  to  which  it  was  attached  by  bolts,  and  this  timber 
was  notched  into  the  upper  surface  of  sills  which  were  imbedded  in  the 
ground.  The  shafting  and  attachments  of  this  machinery  were  fastened 
by  bolts  of  iron  to  the  framework  of  the  mill.]  In  Wickliffe  v.  Clay,  1 
Dana,  585,  591  (1833)  (in  chancery  on  cross  appeals),  it  is  said:  "There 
is  no  reason  to  doubt  that  Lythe  took  possession  of  the  lot,  not  as  a  willful 
trespasser,  but  in  good  faith  (not  knowing  or  apprehending  that  it  was  the 
property  of  Phillips  and  wife)  and  that  while  thus  possessed,  he  erected  the 
stable  in  equal  good  faith;  and  therefore  he,  or  any  other  person  claiming 
under  him,  had  a  perfect  right,  according  to  the  doctrines  of  the  civil  law, 
altogether  consistent  in  this  respect  with  the  princii)les  of  the  common 
law,  to  remove  the  stable,  without  doing  any  injury  to  the  lot  itself  whilst 
he  was  in  possession;  and  consequently  by  such  a  removal  no  liability  was 
inc\irrfd  to  the  true  owners  of  the  lot."  This  case  was,  however,  dis- 
proved in  Stillman  v.  Tlamcr,  8  Miss.,  424  (1843).  [See  Sheffield  v.  Grif- 
fin, 21  Kan.,  417,  419  (1879),  where  a  trespasser  upon  Government  land 
sells  his  improvements,  and  afterwards  acquires  title  to  the  land.] 

[The  rule  stated  in  the  text  docs  not  apply  to  leaseholds.  Thus,  where 
a  lessor  claiming  tiiat  a  lease  had  expired,  demises  to  another,  and  the 
latter  places  fixtures  upon  the  land,  he  can  remove  his  fixtures  if  the  former 
lease  is  adjudged  valid.  Linden  Oil  Co.  v.  Jennings,  207  Pa.  St.,  524,  526 
(1904).  See,  post,  p.  *441,  as  to  fixtures  passing  by  virtue  of  recovery  ia 
ejectment.] 

91 


•59  THE  LAW  OF  FIXTURES.  [OHAP.  II. 

.joint  owners  as  to  strangers;  one  joint  tenant  or  tenant  in  com- 
mon cannot  erect  buildings  or  make  improvements  on  the  com- 
mon property  "without  the  consent  of  the  rest,  and  then 
[*59]  *chiim  to  hold  till  reimbursed  a  proportion  of  the  money 
expended.  Nor  can  he  authorize  it  to  be  done  by  a  third  person. 
Nor  will  it  make  any  difference  that  the  co-tenants  knew  that 
the  building  was  being  erected,  and  made  no  objection.^  It 
makes  no  difference  that  an  annexation  was  made  by  mistake, 
if  made  thereon  without  the  consent  of  the  owner  of  the  land.^ 
The    same    rule    is    also    applied    to    eases    where    the    owner 

1  Crest  V.  Jack,  3  Watts,  238  (1834) ;  Baldwin  v.  Breed,  16  Conn.,  60 
(1843).  In  Baldwin  v.  Breed,  H.  and  W.  being  tenants  in  common  of  land, 
W.,  with  the  consent  of  H.,  erected,  at  his  sole  expense,  a  store  upon  the 
premises,  permanently  annexed  to  the  freehold;  in  an  action  for  partition, 
it  was  alleged  that  plaintiff  and  defendant  were  tenants  in  common,  in 
equal  moieties  of  the  land,  and  that  plaintiff  was  sole  owner  of  the  store; 
lield,  that  in  the  absence  of  any  agreement  that  the  store  should  belong  to 
W.,  or  that  he  might  remove  it,  it  could  not  be  treated  as  W. 's  separate 
property,  and  that  the  consent  of  H.  to  its  erection  did  not  authorize  the 
inference  that  either  party  contemplated  that  it  should  be  the  separate 
property  of  W.,  or  that  W.  might  remove  it.  [See  Eeed  v.  Eeed,  68  Me., 
568,   570    (1878).] 

[Where  three  parties  erected  a  brick  factory  upon  land  owned  by  two 
of  them,  this  does  not  make  the  undivided  interest  of  one  of  them  in  the 
factory  subject  to  levy  as  personal  property.  Allen  v.  Scott,  38  Mass.,  25 
(1838).] 

2  Blair  v.  Worley,  1  Scam.,  178  (1835);  Seymour  v.  Watson,  5  Blackf., 
555  (1841)  ;  Burleson  v,  Teeple,  2  G.  Greene,  542  (1850)  ;  holding  that  a 
rail  fence  built  upon  land  of  the  U.  S.  by  mistake  passes  by  a  subsequent 
sale  of  the  land  to  a  third  person.  [Hereford  v.  Pusch,  68  Pac,  547,  550 
(Ariz.,  1902)  ;  Dutton  v.  Ensley,  21  Ind.  App.,  46,  50  (1898)  ;  Kimball  v. 
Adams,  52  Wis.,  554,  556  (1881);  Masefield  v.  Kotana,  10  N.  Z.,  169,  172 
(1891),]  See,  also,  Climer  v.  Wallace,  28  Mo.,  556  (1859).  [Graham  v. 
Koark,  23  Ark.,  19,  23  (1861);  Brandser  v.  Mjageto,  79  Minn.,  457,  459 
(1900);  Eotan  Grocery  Co.  v.  Dowlin,  77  S.  W.,  430  (Tex.  Civ.  App., 
1903).]  See,  however,  Pennybacker  v.  McDougal,  48  Cal.,  160  (1874). 
[Bingham  Ass'n  v.  Rogers,  7  Ida.,  63  (1900);  Darnall  v.  Jones,  24  Ky. 
Law  R.,  2091  (1903).]  The  rule  on  this  subject  in  Missouri  seems  to  be 
understood  to  be  different.  In  Lowenberg  v.  Bernd,  47  Mo.,  297  (1871), 
the  controversy  arose  from  a  disputed  boundary  line,  each  party  claiming 
that  the  house  in  question  was  situated  upon  his  own  land.  Bliss,  J.: 
"Purchasers  of  adjoining  land  are  divided  by  what  each  considers  the 
true  line  of  division.  One  of  them  with  the  knowledge  of,  and  without 
objection  from,  the  other,  builds  a  house,  and  subsequent  purchasers  recog- 

92 


CHAP,  n.]  ANISTEXATIONS  ALIENO  SOLO.  *59 

nize  the  same  line.     A  survey,  however,  so  changes  this  line  as  to  throw 
the  house  upon  the  adjoining  land,   whereupon   its   owner  moves  it   back 
within  the  last  line.     His  neighbor,  who  had  hitherto  supposed  the  house 
belonged  to  its  purchaser  and  occupant,  and  whose  vendor  had  consented 
to  its  being  built,   commences  suit  for  trespass.     I  care  not  whether  the 
declarations  in  relation  to  the  di\ision  line  were  technically  correct  or  not. 
Admitting  all  that   the  plaintiff  claims,  there  was  a  license  to  build  the 
house  by  the  then  owner  of  the  land  upon  which  it  is  claimed  to  have  been 
built.     It  was  recognized  as  the  property  of  the  builder  and  his  assigns 
down  to  the  running  of  the  new  line,  and  as  soon  as  the  license  could  be 
considered  as  withdra-mi  the  owner  removed  the  building,  as  he  had  a  right 
to  do.     When  one  builds  a  house  or   fence,   or  places   any  other   erection 
upon  the  land  of  another  with  his  permission,  with  the  intention  that  it  be 
held  as  the  property  of  the  builder,  it  continues  personal  property,  and  the 
owner  may  remove  it  when  the  license  is  withdrawn.     Hines  v.  Ament,  43 
Mo.,  298 ;  Matson  v.  Calhoun,  44  Mo.,  368 ;  1  Washb.,  5.     The  Circuit  Court 
rendered  judgment  for  defendant,  and  the  judgment  of  the  District  Court, 
reversing  it,  is  reversed.'    The  other  judges  concur."     The  same  rule  was 
applied  in  Matson  v.  Calhoun,  44  Mo.,  368   (1869),  to  the  ease  of  a  rail 
fence,  though  the  fact  of  license  and  permission  being  left  to  the  jury  and 
found  by  them  in  that  case,  it  may  be  thereby  distinguished.     See,  also, 
Hines  v.  Ament  (supra).     While  the  rule  as  above  declared  is  so  entirely 
just  and  equitable  as  to  deserve  legislative  approval  by  way  of  amendment 
to  the  common  law,  it  is  nevertheless  believed  not  to  be  in  accordance  with 
the  rule  as  generally  understood  and  applied.     The  fundamental  error  of 
the  case  seems  to  be  in  an  assumption  of  the  premises,  which  being  granted 
the  conclusion  is  correct.     The  opinion  states,  that  "one  of  them  with  the 
knowledge  of,  and  without  objection  from,  the  other,  builds  a  house"  upon 
what  both  supposed  to  be  the  land  of  the  builder.     No  reason  is  perceived 
why  any  one  should  object  to  his  neighbor's  building  on  what  both  sup- 
posed to  be  his  own  land ;  and  the  supposed  license,  if  any  there  was,  was 
likewise  that  his  neighbor  might  build  upon  what  both  supposed  to  be  his 
neighbor 's  own  land,  which,  if  it  can  be  considered  as  in  any  sense  a  license, 
was  based  upon  such  a  mistake  of  fact  as  to  render  it  of  no  validity.     The 
case  is  one  that  should  be  made  the  subject  of  statutory  aniondmont,  and 
until  this  is  done  it  is  believed  that  the  rule  is  as  stated  in  the  text.     The 
act  of  Feb.  23,  1819  (R.  L.,  419;  Gale's  Stat.  111.,  433),  entitled  "an  act 
to  enable  persons  to  remove  fences  made  by  mistake  on  the  lands  of  other 
persons,"  applies  only  to  natural  persons,  and  has  no  relation  to  the  case 
of   a    fence    erected    upon   land    of   the   United    States.      Blair    v.    Worlcy 
(supra).     All  improvements  on  public  lands  of  the  United  States,   which 
have  become  a  part  of  the  realty,  pass  to  the  purchaser  thereof  from  the 
United   States;   and   the  Act  of   March  30,   1868    (Stats.   1867-8,   p.   708), 
providing  that  an  inhabitant  of  the  State  who  has  put  improvements  upon 
any  land  of  the  United  States  or  of  the  State,  or  who  has  the  right  of 
possession  of  sufh  improvements,  may  remove  the  same  within  six  months 
after  the  land  shall  have  become  the  private  property  of  any  person  ;   and 
declaring  that  houses,  barns,  sheds,  outhouses,  buildings,  fences,  orchards 

93 


*60  THE  L.VW  OP  FIXTURES.  [CHAP.  II. 

[*60]  *of  the  land  is  under  a  legal  disability,  and  hence  cannot 
legally  consent  to  the  erection  of  a  building  or  other  structure 
[*61]  upon  the  *land;i  c.  g.,  erections  by  the  father  upon  the 
land  of  his  minor  child.2  But  with  reference  to  the  disability 
of  coverture,  although  the  wife,  by  reason  of  her  general  disa- 
bilities arising  fi'oni  the  marriage,  is  not  competent  to  restrict 
or  enlarge  the  husband's  rights  over  her  property,  or  to  contract 
with  him  in  reference  to  it,  and  cannot  therefore  consent  to  his 
erecting  buildings  or  making  improvements  upon  her  property, 
yet  as  he  is  in  his  own  right  a  tenant  by  marital  right  of  her 
lands  during  their  joint  lives,  he  must  be  regarded  as  making 
improvements  as  a  tenant  for  life  in  his  own  right,  irrespective 
of  any  contract  with  his  wife  ■,^  and  therefore,  where  the  annexa- 

and  vineyards,  shall  be  held  to  be  improvements  within  the  meaning  of  the 
act,  in  so  far  as  it  relates  to  improvements  which  are  part  of  the  realty, 
is  void,  as  interfering  with  the  primary  disposal  of  the  public  lands  by  the 
United  States,  and  in  violation  of  the  act  admitting  California  into  the 
Union.  Collins  v.  Bartlett,  44  Cal.,  371  (1872) ;  Penuybacker  v.  McDougal, 
48  Cal.,  160  (1874).  In  general,  however,  in  this  State  where  pre-emption 
claims  to  public  mineral  lands  are  for  most  purposes  regarded  as  titles, 
as  legal  estates  of  freehold,  the  ordinary  rules  of  the  law  of  fixtures  apply 
to  erections  thereon.  Merritt  v.  Judd,  14  Cal.,  59  (1859).  [Merritt  v. 
Judd,.  supra,  was  followed  in  Eoseville  Min.  Co.  v.  Iowa  Gulch  Co.,  15 
Colo.,  29   (1890).] 

1  Washburn  v.  Sproat,  16  Mass.,  449  (1820)  ;  Marable  v.  Jordan,  5 
Humph.,  417  (1844);  Howard  v.  Fessenden,  14  Allen,  128  (1867).  [See 
Haggerty  v.  McCanna,  25  N.  J.  Eq.,  48   (1874).] 

[An  agreement  that  a  building  to  be  placed  by  a  father  upon  the  land 
of  a  married  daughter,  may  be  removed  by  him,  is  void;  and  a  similar 
agreement,  after  the  building  has  been  erected  and  the  disability  removed, 
would  be  concerning  her  own  property,  and  without  consideration,  and 
void.     Be  Perkins'  Est.,  26  Atl.,  637,  638   (Vt.,  1893).] 

2  Copley  V.  O'Neil,  1  Lans.,  214  (1869),  holding  such  a  building  not  sub- 
ject to  a  mechanic 's  lien  as  the  property  of  the  father.  Mathes  v.  Dob- 
schutz  [72  111.,  438],  Supr.  Ct.,  111.,  Oct.,  1874;  7  Chicago  Leg.  News,  43. 
[In  Adams  v.  Kauwa,  6  Hawaii,  280  (1881),  a  guardian  was  allowed, 
after  the  death  of  his  ward  (son),  to  remove  a  house  erected  by  him 
upon  his  ward's  land,  as  he  is  not  a  trespasser.  The  manner  of  annexation 
is  not  clearly  shown  in  the  opinion,  but  it  seems  to  have  been  slight.] 

sDoak  V.  Wiswell,  38  Me.,  569  (18.54);  Estate  of  Hinds,  5  Whart.,  138 
(1840).  See,  also,  "Washburn  v.  Sproat,  16  Mass.,  449  (1820).  [Adams 
V.  Kauwa,  6  Hawaii,  280  (1881);  White  v.  Hildreth,  32  Vt.,  265  (1859). 
The  rule  has  been  changed  by  statute  in  Maine.  See  Peaks  v.  Hutchinson, 
96  Me.,  530  (1902).] 

94 


CHAP,  n.]  ANNEXATIONS  ALIENO  SOLO.  *62 

tion  comes  within  the  rule  as  to  trade  fixtures,  existing  between 
the  representatives  of  the  tenant  for  life  and  the  remainderman, 
it  may  be  removed  by  his  personal  representatives.^ 

There  has  been  made,  however  (and  very  properly,  as  it 
*seems),  a  distinction  as  regards  the  persons  between  whom  [*62] 
the  question  arises;  and  it  has  accordingly  been  held  that  a 
building  erected  by  an  individual,  on  piles  driven  into  the  bed 
of  a  navigable  river  below  water  mark,  the  interest  of  the  soil 
belonging  to  the  public,  and  the  builder  having  no  right  thereto, 
is  as  between  individuals  personal  property.^     The  rule,  it  will 

*  Estate  of  Hinds  (sitpra) .  See  the  subject  further  considered  in  its 
proper  place,  post. 

5  Marcy  v.  Darling,  8  Pick.,  283  (1820).  See,  also,  Lancaster  v.  Eve, 
5  C.  B.  (N.  S.),  717  (1859)  ;  Fuller  v.  Tabor,  39  Me.,  519  (1855) ;  Foy  v. 
Eeddick,  31  Ind.,  414  (1869),  where  the  house  stood  in  the  street.  [See 
Michigan  Mut.  Ins.  Co.  v.  Cronk,  93  Mich.,  49,  51  (1892);  Taylor  v. 
Prendergast,  29  S.  W.,  87,  88  (Tex.,  1894)  ;  Page  v.  Urick,  31  Wash.,  601, 
604  (1903);  Paige  v.  Peters,  70  Wis.,  178  (1887);  Dixon  v.  Mackay,  38 
Can.  Law  J.,  653  (Man.,  1902).] 

[Buildings  erected  by  a  firm  upon  public  lands  are  chattels  real,  and 
partnership  assets.  Tarabino  v.  Nicoli,  5  Colo.  App.,  545,  552  (1895). 
Dwelling-houses,  fences,  grapevines,  etc.,  upon  public  lands,  are,  between 
private  parties,  personal  property.  See  Mantooth  v.  Burke,  35  Ark.,  540, 
545  (1880);  O 'Hanlon  v.  Denvir,  81  Cal.,  60  (1889).  This  question  is 
regulated  by  statute  in  Nebraska.  See  Paxton  Cattle  Co.  v.  First  Nat. 
Bank,  21  Neb.,  621,  646  (1887)  ;  Carkins  v.  Anderson,  21  Neb.,  364 
(1887);  Brooks  v.  Hiatt,  13  Neb.,  503  (1882);  McWilliams  v.  Bridges, 
7  Neb.,  419,  422  (1878).  Improvements  upon  government  land  are  con- 
sideration for  a  promissory  note.  Bell  v.  Parks,  18  Kan.,  152  (1877); 
but  see  Merrell  v.  Legrand,  2  Miss.,  150  (1834),  where  it  was  held  that  a 
promissory  note  given  for  improvements  made  upon  government  land  by 
a  trespasser,  is  for  an  illegal  consideration,  and  not  recoverable.] 

[Where  the  contest  is  between  parties  who  do  not  own  the  land,  the 
question  does  not  arise  as  to  whether  fixtures  could  bo  removed  by  one  of 
the  parties  as  against  the  landowner.  Greencbaum  v.  Taylor,  102  Cal., 
624,  626  (1894);  see  Sawyer  v.  Long,  86  Me.,  541  (1894),  as  between  a 
chattel  mortgagee  and  a  buyer  of  fixtures;  March  v.  McKoy,  56  Cal.,  85, 
86  (1880),  as  between  the  "lessor"  of  an  engine  and  boiler  and  a  pur- 
chaser thereof;  and  Myrick  v.  Bill,  3  Dak.,  284,  288  (1883),  where  a  bill 
of  sale  was  given  by  a  party  in  possession  of  a  dwelling-house  and  store 
upon  railroad  lands.] 

[The  fact  that  a  platform  and  a  "lean-to"  connected  with  a  mill,  stand 
upon  the  land  of  an  adjoining  owner,  does  not  justify  a  party  in  refusing 
to  carry  out  bis  contract  to  buy  the  mill,  where  it  does  not  appear  that  thQ 

95 


•62  THE  LuVW  OF  FIXTURES.  [CHAP.  II. 

be  observed,  proceeds  upon  the  presumption  of  an  intended  gift 
to  the  owner  of  the  soil.^  This  presumption  as  to  the  intention 
of  the  party  making  the  annexation,  is  not,  however,  in  all  cases 
a  conclusive  one,  and  may  be  rebutted  by  circumstances  show- 
ing a  contrary  intention.  It  is  not  a  necessary  inference  from 
the  simple  fact  of  annexation,  where  the  chattel  is  severable 
without  injury  to  itself  or  the  freehold,  that  the  chattel  becomes 
the  property  of  the  freeholder ;  but  it  is  always  open  to  inquiry 
how  the  article  came  to  be  in  the  place  in  which  it  is  found, 
and  what  the  parties  intended  as  to  its  use,  and  the  jury  may  in- 
fer from  user  or  other  circumstances,  an  agreement  when  the 
chattel  was  annexed  that  the  original  owner  should  have  liberty 

adjoining  landowner  claims  any  interest  in  the  platform  or  the  "lean-to." 
Towner  v.  Ticknor,  112  III.,  217,  223    (1885).] 

In  California,  where  preemption  claims  to  public  mineral  lands  are  for 
most  purposes  regarded  as  titles,  or  legal  estates  of  freehold,  the  ordinary 
doctrines  of  the  law  of  fixtures  apply  to  erections  thereon.  Merritt  v.  Judd, 
14  Cal.,  59    (1859). 

c  Prima  facie  a  building  is  real  estate,  and  belongs  to  the  owner  of  the 
land  on  which  it  stands,  and  such  is  the  presumption,  even  where  a  build- 
ing is  erected  by  one  man  upon  the  land  of  another.  Chatterton  v.  Saul,  16 
111.,  149  (1854).  See  the  cases  cited,  post,  ch.  3  [p.  *66.  Matzon  v.  Grif- 
fin, 78  111.,  477,  480  (1875);  Sullivan  v.  Carberry,  67  Me.,  531,  532 
(1877);  Missouri  Pac.  E'y  Co.  v.  Cullers,  81  Tex.,  382,  390  (1891); 
Northrup  v,  Trask,  39  Wis.,  515,  518  (1876)  ;  see,  also,  Tharp  v.  Allen, 
46  Mich.,  389,  392  (1881).  For  presumption  as  between  landlord  and 
tenant,  see  post,  p.  *134]. 

[That  buildings  are  designated  as  a  "camp"  does  not  prove  that  they 
are  no  part  of  the  land.  Missouri  Pac.  E'y  Co.  v.  Cullers,  81  Tex.,  382, 
390   (1891).] 

[In  order  to  show  that  a  building  is  a  chattel,  it  is  not  sufficient  to 
prove  that  it  rested  upon  stone  pillars,  but  it  must  be  shown  that  it  rested 
upon  the  pillars  solely  by  its  own  weight,  without  being  connected  with 
the  soil  by  any  means.  McKenzie  v.  McDonald,  2  Nova  S.  Dec,  11,  12 
(1869).] 

[Where  there  is  nothing  to  show  how  a  saw-mill  and  a  grist-mill  are 
attached  to  the  realty,  or  who  owns  the  land,  perhaps  no  presumption 
would  arise  as  to  whether  they  are  realty  or  personalty.  Price  v.  Malott, 
85  Ind.,  266,  269   (1882).] 

[The  fact  that  a  firm  may  have  paid  some  of  the  bills  incurred  in  com- 
pleting buildings  used  by  them  upon  land  belonging  to  one  partner,  is  not 
inconsistent  with  sole  ownership  of  the  building  by  that  one  partner  where 
he  advanced  money  to  the  firm;  and  at  most  the  firm  would  only  have  a 
lien  for  compensation.    Goepper  v.  Kinsinger,  39  Qliio  St.,  429  (1883).] 

96 


CHAP,  II.]  ANNEXATIONS  ALIENO  SOLO.  *63 

to  take  it  away  again."  Thiis,  in  Lancaster  v.  Eve,s  where  the 
plaintiffs  were  possessed  of  a  wharf  on  the  Thames,  in  front  of 
which  about  twenty  years  before,  a  pile  of  wood  had  been  driven 
into  the  bed  of  the  river  *by  the  plaintiffs'  predecessors,  [*63] 
occupiers  of  the  wharf,  and  had  remained  there  without  inter- 
ruption from  the  crown  or  conservators  of  the  river,  and  was 
necessary  to  the  enjoyment  of  the  wharf,  it  was  held,  that  these 
were  circumstances  from  which  the  court  could  properly  draw 
the  inference  that  the  pile  was  not  so  placed  with  a  view  to 
its  permanent  annexation  to  the  freehold  so  as  to  become  a  part 
thereof,  but  that  it  was  placed  there  by  virtue  of  an  easement 
granted  by  the  crown,  or  whoever  had  a  right  to  grant  it,  and 
that  there  was  a  sufficient  possession  in  plaintiffs  to  entitle  them 
to  maintain  an  action  against  defendants  for  negligently  run- 
ning against  it  or  removing  it.  Williams,  J.,  observed:  **No 
doubt  the  maxim  'Quicquid  plantatur  solo,  solo  cedit,'  is  well 
established,  the  only  question  is,  what  is  meant  by  it.  It  is  clear 
that  the  mere  putting  a  chattel  into  the  soil  by  another  cannot 
alter  the  ownership  of  the  chattel.  To  apply  the  maxim,  there 
must  be  such  a  fixing  of  the  soil  as  reasonably  to  lead  to  the  in- 


TMant  V.  Collins  (1841),  cited  in  Wood  v.  Hewitt,  8  Q.  B.,  916,  919 
(1846)  ;  s.  C,  15  L.  J.  Q,  B.,  247;  10  Jur.,  390,  In  Wood  v.  Hewitt,  the 
article  in  question  was  a  fender  moving  up  and  down  in  a  groove  fixed  to 
brickwork,  and  when  down  resting  upon  a  sill  fixed  in  brick,  used  to  prevent 
the  escape  of  water  in  a  mill  stream.  In  Mant  v.  Collins,  it  was  the  door 
of  a  pew  in  a  church,  hung  on  hinges  and  removable  without  interfering 
with  the  staple.  See,  however,  Ogden  v.  Stock,  cited  in  §  4,  ch.  1.  [That 
right  of  removal  may  be  implied  from  circumstances,  see  Price  v.  Malott, 
85  Ind.,  266,  269  (1882);  and  Fischer  v.  Johnson,  106  Iowa,  181,  184 
(1898),  the  former  case  relating  to  a  grist-mill  and  saw-mill,  and  the 
latter  to  corn-cribs.] 

[The  rulo  that  when  a  person  affixes  his  property  to  the  land  of  another 
without  agreement,  the  thing  affixed  belongs  to  the  owner  of  the  land, 
does  not  apply  to  improvements  upon  government  land,  when  removal 
thereof  can  bo  made  without  injury  to  the  soil,  as  the  laws  of  congress 
require  adverso  settlers  to  rcsiile  upon  and  improve  lands  before  acquiring 
title;  and  to  hold  that  such  improvements  are  made  for  the  use  and  benefit 
of  the  successful  litigant  would  be  a  hardship  upon  the  losing  party  which 
the  law  does  not  contemplate.  Winans  v.  Beidler,  6  Okla.,  603,  606 
(1898).] 

"5  ('.  B.  (N.  S.),  717  (1859) ;  s.  c,  28  L.  J.,  C.  P.,  235;  5  Jur.  (N.  S.), 
683. 

7  97 


*60  THE  L.VW   OF  FIXTURES.  [CIIAP.  II. 

ference  that  it  was  intended  to  be  incorporated  with  the  soil."* 
The  question  may,  it  is  presumed,  also  be  determined  by  the 
influence  of  a  custom  showing  the  intention  of  the  parties.^ 

iScc,  also,  Meigs'  Appeal,  62  Penn.  St.,  28  (1869).  The  facts  of  this 
case  were,  that  during  the  late  rebellion,  the  United  States  erected  with 
their  own  materials,  buildings  for  military  barracks  and  hospitals,  on  posts 
set  in  the  ground  on  the  public  common  of  York,  which  had  been  granted 
"to  be  kept  as  an  open  common  forever,  for  the  use  of  said  borough,  and 
to  and  for  no  other  use,  intent,  or  purpose  whatsoever;"  and  the  borough 
authorities  therefore  had  no  authority  to  assent  to  the  erections  as  perma- 
nent. After  the  war  the  officers  of  the  government  offered  the  buildings 
for  sale,  the  buildings  to  be  removed;  and  on  these  facts  it  was  held,  that 
the  question  of  fixture  or  not,  depends  on  the  nature  or  character  of  the 
act  by  which  the  structure  is  put  in  place,  the  policy  of  the  law  connected 
with  its  purpose,  and  the  intentions  of  those  concerned  in  the  act;  that  it 
not  being  the  intention  of  either  party  that  the  buildings  should  be  perma- 
nent, the  character  of  the  erectio'ns  not  being  that  of  improvements  for 
objects  connected  with  the  soil,  and  the  act  being  distinguishable  from  an 
ordinary  trespass,  and  the  borough  lying  by  and  suffering  the  United 
States  to  put  up  the  structures  without  objection  on  the  public  common, 
where,  if  permanent,  they  would  be  nuisances,  the  borough  was  estopped 
from  declaring  that  the  United  States  intended  to  annex  their  chattels  to 
the  freehold,  and  that  the  removal  thereof  would  not  be  restrained  by 
injunction.  [See  Potter  v.  Eend,  201  Pa.  St.,  318,  326  (1902);  Wake  v. 
Hall  (1883),  8  App.  Cas.,  195,  aff'g  (1880)   7  Q.  B.  D.,  295.] 

[Where  a  railroad  company,  for  the  purpose  of  supplying  its  locomotives 
with  water,  dug  a  well  and  placed  a  boiler  and  pump  upon  land  which  it 
erroneously  supposed  was  its  own,  and  used  the  same  for  six  years,  this 
was  not  with  the  intention  of  ultimately  improving  the  realty,  and  the 
boiler  and  engine  might  be  removed.  The  boiler  was  placed  upon  a  cast- 
iron  base,  but  not  set  in  masonry,  and  the  pump  was  connected  therewith 
by  pipes.  Atchison,  T.  &  S.  F.  E.  K.  Co.  v.  Morgan,  42  Kan.,  23,  31 
(1889).] 

[Where,  in  clearing  unimproved  land,  one  .landowner,  not  knowing  the 
exact  division  line,  builds  a  temporary  rail  fence,  which  is  partly  upon  the 
adjoining  lot,  he  does  not  forfeit  his  property  in  the  rails  constituting 
such  fence.     Curtis  v.  Leasia,  78  Mich.,  480,  484   (1889).] 

[The  owner  of  lot  one  built  a  cottage  which,  by  mistake,  was  placed 
partly  upon  lots  seventeen,  eighteen,  and  the  alley  back  of  lot  one.  The 
house  stood  upon  blocks  of  wood  placed  under  the  corners.  The  builder 
always  treated  it  as  j^ersonal  property.  The  vendee  of  lot  eighteen  moved 
it  to  the  center  of  his  lot,  placed  brick  piers  under  it  and  built  an  addition 
to  it,  and  sold  it  and  the  lot.  Held,  that  it  remained  the  personal  property 
of  the  builder.     McDaniel  v.  Lipp,  41  Neb.,  713,  716   (1894).] 

2  See  the  subject  of  custom  considered  post.  Landlord  and  Tenant.  See, 
also.  Com.  Dig.,  London,  N.  5;  Priv.  Lond.,  59.  [Wake  v.  Hall  (1883),  8 
App.  Cas.,  195,  aff'g  (1880)   7  Q.  B.  D.,  295.] 

98 


CHAP,  n.]  ANNEXATIONS  ALIENO   SOLO.  *64 

*Tlie  rule  that  annexations  made  by  a  stranger  to  the  [*64] 
soil  of  another  without  his  consent  becomes  the  property  of  the 
owner  of  the  soil,  applies  also  to  trees,  plants,  and  crops  planted 
or  sowed  thereon  without  the  consent  of  the  owner  of  the  land.^ 

3  Mitchell  V.  Billingsley,  17  Ala.,  391  (1850);  Simpkins  v.  Eogers,  15 
111.,  397  (1854);  Boyer  v.  Williams,  5  Mo.,  335  (1838);  Masters  v.  Pollie, 
2  Kolle,  1-41  (1620);  Mo.,  24,  pi.  84;  1  Eolle,  101;  Jenk.,  204;  Dyer,  31b, 
pi.,  219.  See  (post)  Emblements.  [Floyd  v.  Kicks,  14  Ark.,  286  (1853)  ; 
Castleberry  v.  Atlanta,.  74  Ga.,  164,  170  (1884) ;  Mt.  Carmel  v.  Shaw,  155 
111.,  37,  43  (1895),  reversing  52  111.  App.,  429  (1893);  Baker  v.  Normal, 
81  111.,  108  (1876);  Krug  v.  Davis,  101  Ind.,  75,  76  (1884);  Kiernan  v. 
Heaton,  69  Iowa,  136  (1886)  ;  Freeman  v.  McLennan,  26  Kan.,  151  (1881)  ; 
State  V.  Salisberry,  49  Kan.,  160  (1892)  ;  Wadge  v.  Kittleson,  97  N.~"W., 
856,  859  (N.  Dak.,  1903)  ;  see,  also,  Graham  v.  Eoark,  23  Ark.,  19,  23 
(1861);  Mercil  v.  Broulette,  66  Minn.,  416,  418  (1896);  and  Ejectment, 
post,   p.    *442.] 

[As  between  two  parties,  neither  of  whom  claims  title  to  the  land,  the 
title  to  a  growing  crop  thereon  depends  upon  the  question  as  to  which  is 
in  possession  of  the  land.     "West  v.  Smith,  52  Cal.,  322,  324    (1877).] 

In  Waterman  v.  Soper,  1  Ld.  Eaym.,  737  (1697-8),  it  was  ruled  by  Lord 
Holt  at  the  Lent  assizes  at  Winchester,  upon  a  trial  at  nisi  prius,  that  if  A. 
plants  a  tree  upon  the  extremest  limits  of  his  land,  and  the  tree  growing 
extends  its  roots  into  the  land  of  B.,  next  adjoining,  A.  and  B.  are  tenants 
in  common  of  this  tree;  but  if  all  the  root  grows  into  the  land  of  A., 
though  the  boughs  overshadow  the  land  of  B.  yet  the  branches  follow  the 
root,  and  the  property  of  the  whole  is  in  A.  The  same  rule  was  also  laid 
down  in  an  anonymous  case  in  2  Eoll.,  225.  In  GrifRn  v.  Bixby,  12  N.  H., 
454  (1841),  it  was  held  that  a  forest  tree  standing  directly  upon  the  line 
between  adjoining  owners,  so  that  the  line  passes  through  it,  is  the  common 
property  of  both,  and  that  trespass  lies  if  one  cuts  and  destroys  it  without 
the  consent  of  the  other.  [Quillen  v.  Betts,  1  Penncwill,  53,  59  (Del., 
1897);  Nixon  v.  Stillwell,  5  N.  Y.  Supp.,  248,  249  (1889);  ]\Iiller  v. 
Holland,  13  Pa.  Co.,  622  (1890).  Also,  one  land-owner  can  be  enjoined 
by  the  other  from  doing  a  serious  injury  to  such  trees.  Musch  v.  Burk- 
hart,  83  Iowa,  301  (1891).  And  an  injunction  will  issue  to  restrain  cut- 
ting down  a  tree,  one-third  of  the  trunk  being  upon  the  adjoining  lot. 
Comfort  V.  Everhardt,  35  W.  N.  C,  364  (Phila.,  1894).  A  line  hedge  is 
common  property.  Ilarndon  v.  Stultz,  100  N.  W.,  329  (Iowa,  1904).] 
See  the  rule  of  the  civil  law  in  Just.  Inst.,  2,  1,  31;  Dig.,  41,  1,  7,  13. 
See,  also,  Code  Nap.  Art.,  670-673.  In  Masters  v.  Poilio  {supra),  however, 
in  trespass  quare  clausum  fregit  et  asportavit  of  boards,  the  defendant 
justified  that  there  was  a  large  tree  which  grew  between  the  close  of  the 
plaintifT  and  defendant;  tliat  part  of  the  roots  of  the  tree  extended  into 
the  defendant's  close;  that  tiic  tree  was  nourished  by  the  soil,  and  that  the 
plaintiff  cut  down  the  tree  and  carried  it  away  into  his  own  close,  and 

99 


*64  THE  LAW   OF  FIXTURES.  [CHAP.  II. 

there  sawed  it  into  boards;  whereupon  the  defendant  entered  and  carried 
away  sonio  of  the  boards,  etc.;  and  upon  demurrer,  the  pica  was  hehl  bad, 
for  it  matters  not  that  some  of  the  roots  of  the  tree  arc  in  the  soil  of  the 
defendant  when  the  body  or  main  part  of  the  tree  is  in  the  soil  of  the 
plaintiff,  for  to  this  the  rest  of  the  tree  appertains.     In  Holder  v.  Coates, 
1  Moo.  &  M.,  112   (1827),  where  the  trunk  stood  in  the  defendant's  land, 
but  some  of  the  lateral  roots  grew  into  the  laud  of  both  parties,  Little- 
dale,  J.,  said  he  thought  the  doctrine  of  Masters  v.  Pollie  preferable  to 
that  of  Waterman  v.  Soper,  but  in  summing  up,  laid  down  the  rule  that 
the  safest  criterion  was  to  consider  the  property  in  the  tree  as  belonging 
to   the  owner  of   the   land   in  which   the  tree  was   first  sown   or  planted. 
In   Lyman   v.   Hale,   11   Conn.,   177    (1836),   where  the   trunk  of  a   forest 
tree  was  a  little  more  than   four   feet  from   the   line,   but  some  of   the 
roots   as   well   as   the  branches   extended   over   the   line,   it   was   held,   ap- 
proving  Masters  v.   Pollie    {supra),   that   the   adjoining   proprietors  were 
not  joint  owners  or  tenants  in  common  of  the  tree,  which  with  its  over- 
hanging branches  and  the  fruit  thereon  belonged  wholly  to  the  owner  of 
the  land  whereon  it   stood.     See,   also.   Pop.   163;    Skinner   v.   Wilder,   38 
Vt.,   115    (1865).      [The  roots   of   a   large  elm   tree   upon   adjoining   land 
helped  to   form  the  wall  of  a  spring  ten  feet  distant,  and  the  top  over- 
hung the  spring.     The  owner  of  the  spring  has  no  right  to  the  tree,  and 
can  have  no  action  against  the  owner  of  the  tree  for  cutting  it.     Lucas 
V.  Bishop,    83   Tenn.,    165    (1885).]      The   case   of   Griffin   v.   Bixby,   may 
be  distinguished  from  the  other  cases  cited  in  that,  in  this  case  the  tree 
stood    directly   upon   the   line,   which   passed    through   it;    and   where    the 
tree  is   thus   situated,   it  may   doubtless  properly   be   considered,   to   some 
extent   common   property.     But   where   the   body   or   trunk   of   the   tree  is 
entirely  on  one  side  of  the  line,  and  only  the  roots  and  branches  extend 
over   the  line  upon   the   adjoining  land,   the   weight   of   authority  is  that 
there   is   no   ownership   in   common;    and   Waterman   v.    Soper,    if   it   may 
properly  be   deemed  an  authority  to   the  contrary,  is  probably  overruled. 
See,  also,  Eelyea  v.  Beaver,  34  Barb.,  547    (1861),  where,  while  the  first 
point    in    Waterman   v.    Soper    is    disapproved,    the    opinion    is    expressed 
that  "the  portion   [of  the  trunk]   that  grows  on  the  land  of  each,  must 
belong  separately  to  him,  and  not  partly  to  him  and  partly  to  his  neigh- 
bor."    This  case  was  affirmed  without  passing  on  this  point,  in  Dubois 
V.  Beaver,  25  N.  Y.,  123    (1862).     See,   also,  Hoffman   v.   Armstrong,  46 
Barb.,  337   (1866);   S.  c,  48  N.  Y.,  201;   3  Kent  Com.,  438,  note. 

[Where  a  tree  stands  upon  the  boundary  line,  each  land-owner  has  an 
interest  identical  with  the  part  upon  his  land,  and  a  right  to  demand 
that  the  owner  of  the  other  portion  shall  so  use  his  part  as  not  unreason- 
ably to  injure  the  whole.  However,  each  land-owner  has  a  right  to 
cut  the  branches  and  roots  extending  upon  his  land;  but  not  any  por- 
tion of  the  trunk.  Divisions  of  the  trunk  extending  more  perpendicularly 
than  horizontally,  are  to  be  regarded  as  a  portion  of  it.  One  land-owner, 
wishing  to  build  up  to  the  line,  will  not  be  enjoined  from  removing 
that   portion   of  the  trunk  upon   his  land,  where   such  action   would   det 

100 


CHAP,  n.]  ANNEXATIONS  ALIENO   SOLO.  *65 

*The  legal  effect  of  annexation  of  a  chattel  to  the  realty  [*65] 
of  another,  with  his  consent,  or  under  a  contract,  express  or 
implied,  will  be  considered  in  the  next  chapter.  See,  also,  post, 
annexations  to  the  freehold  of  the  church. 

prive  him  of  an  opportunity  to  build  (the  lot  in  this  ease  being  but 
twenty-one  feet  in  width,  and  the  tree  a  large  one),  as  such  action 
would  be  likely  to  produce  a  greater  irreparable  injury  to  him  than 
a  destruction  of  the  tree  would  to  the  other  land-owner,  but  the  con- 
testants should  be  left  to  settle  their  rights  at  law.  Eobinson  v.  Clapp, 
65   Conn.,   365    (1895);   67   Conn.,  538    (1896).] 

[Trees  and  their  overhanging  branches  in  so  far  as  they  are  on  or 
over  the  land  of  the  adjoining  land-owner,  belong  to  him,  and  he  can 
cut  them  off  at  his  pleasure.  Grandona  v.  Lovdal,  78  Cal.,  611,  618 
(1889).] 

[The  rule  in  regard  to  trees  upon  the  boundary  line  between  private 
land-owners  does  not  apply  where  a  tree  is  on  the  line  between  a  public 
highway  and  an  adjoining  lot.  In  such  case,  if  it  is  necessary  to  remove 
a  part  of  the  tree  for  the  purpose  of  constructing  a  sidewalk,  and  the 
part  left  would  be  a  menace  to  public  travel,  the  entire  tree  may  be 
removed.    Wilson  v.  Simmons,  89  Me.,  242,  262   (1896).] 


101 


[*66]  CHAPTEK  III. 

OF  THE  LEGAL  EFFECT  OF  ANNEXATION  OF  CHAT- 
TELS TO  THE  SOIL  OF  ANOTHER  WITH  HIS 
CONSENT,  OR  UNDER  A  CONTRACT,  EX- 
PRESS OR  IMPLIED,  AS  TO 
THEIR  REMOVAL.i 

The  influence  of  the  intention  of  the  parties  in  determining 
whether  or  not  by  annexation  to  the  realty,  an  article  has  lost 
its  chattel  nature  and  become  a  part  of  the  realty,  is  well  illus- 
trated by  the  cases  discussing  the  subjects  of  this  chapter. 
Prima  facie,  all  buildings,  and  especially  dwelling  houses,  be- 
long to  the  owner  of  the  land  on  which  they  stand  as  part 
of  the  realty,  and  the  burden  of  proof  is  upon  those  who  claim 
that  they  are  personal  property  to  show  that  they  retain  that 
character.2    And,  perhaps,  it  may  be  said  that,  in  the  absence 

1  This  chapter  is  not  intended  to  include  the  discussion  of  questions 
arising  out  of  the  ordinary  relations  of  landlord  and  tenant,  vendor  and 
vendee,  etc.,  nor  of  questions  arising  between  those  parties,  which  are 
reserved   for  future  chapters. 

2  See  Howard  v.  Fessenden,  14  Allen,  128  (1867);  Madigan  v.  Mc- 
Carthy, 108  Mass.,  307  (1871);  Fisher  v.  Saffer,  1  E.  D.  Smith,  611 
(1852);  Smith  v.  Benson,  1  Hill,  176  (1841);  Chatterton  v.  Saul,  16  HI., 
149  (1854);  Dooley  v.  Crist.,  25  111.,  551,  556  (1861);  Meyers  v,  Schemp, 
67  111.,  469  (1873);  Goff  v.  O 'Conner,  16  111.,  421,  423  (1855);  Curtiss  v. 
Hoyt,  19  Conn.,  165  (1848).  [Harris  v.  Powers,  57  Ala.,  139,  143  (1876); 
Pedroni  v.  Eppstein,  17  Colo.  App.,  424  (1902) ;  Myrick  v.  Bill,  3  Dak., 
284,  287  (1883);  Booth  v.  Kapuakela,  10  Hawaii,  414,  415  (1896); 
Mathes  v.  Dobschuetz,  72  111.,  438,  441  (1874)  ;  Indianapolis,  D.  &  W. 
E'y  Co.  V.  First  Nat.  Bank,  134  Ind.,  127  (1892);  Price  v.  Malott,  85 
Ind.,  266,  269  (1882)  ;  District  Twp.  of  Corwin  v.  Moorehead,  43  Iowa, 
466,  468  (1876);  Merchants'  Nat.  Bank  v.  Stanton,  59  Minn.,  532,  536 
(1894);  Agnew  v.  Jones,  74  Miss.,  347,  352  (1896);  Talbot  v.  Crugei;, 
151  N.  Y.,  117,  120  (1896),  aff'g  88  Supr.  Ct.  (81  Hun.),  504,  508  (1894); 
Western  N.  C.  E.  E.  v.  Deal,  90  N.  C,  110,  111  (1884) ;  Histe  v.  Buck- 
ley, 8  Ohio  C.  C.  E.,  470,  473    (1894) ;   Evans  v.  McLucas,  15  S.  C,  67, 

102 


CHxVP.   m.]  CONTRACTS  AS  TO  REMOVAL,  *67 

of  circumstances  showing  a  contrary  intention,  the  same  nile 
applies  to  all  other  actual  annexations  to  the  soil.^  It  is,  how- 
ever, well  settled  that,  with  the  limitation  stated  below,  the  char- 
acter of  personal  property,  and  the  right  of  removal  thereof  as 
against  the  owner  of  the  soil,  may  be  preserved  by  an  agreement 
previous  to  its  annexation  between  the  owner  of  the  soil  and 
the  owner  of  the  chattel,  that  the  same  shall  be  considered  as 
per*sonal  property  removable  by  its  owner,  notwithstand-  [*67] 

ing  its  annexation  to  the  soil  ;^  though  if  annexed  wrongfully  or 

/' 

70  (1880);  Bean  v.  Toland,  1  Tex.  Ct.  App.,  Civ.,  §  1022  (1881);  see, 
also,  Bonson  v,  Jones,  89  Iowa,  380,  387  (1893) ;  Wheeler  v.  McFerron, 
33  Ore.,  22,  25   (1898).] 

See,  however,  Eogcrs  v.  Woodbury,  15  Pick.,  156  (1832),  cited  post, 
Eemedies.  [See,  post,  p.  *134  for  presumption  as  between  landlord  and 
tenant.] 

3  See  Holland  v.  Hodgson,  L.  E.,  7  C.  P.,  328,  334  (1872);  Brown  v. 
Bridges,  31  Iowa,  146  (1870) ;  and  cases  cited  ante,  p.  *32.  [Powers  v. 
Harris,  68  Ala.,  409,  411  (1880);  Ott  v.  Specht,  8  Houston,  61,  70  (Del., 
1887)  ;  Eowand  v.  Anderson,  33  Kan.,  264,  267  (1885)  ;  Shelton  v,  WilUs, 
23  Tex.  Civ.  App.,  547,  550   (1900).] 

[Saw-mills  and  grist-mills  erected  upon  the  land  of  another,  being 
used  in  mercantile  business,  are  presumed  to  be  personalty.  Price  v. 
Malott,  85  Ind.,  266,  269    (1882).] 

[A  fence  is  not,  out  and  out,  a  part  of  the  land.  Ivins  v.  Ackerson, 
38  N.  J.  Law,  220,  222   (1876).] 

*  Howard  v.  Fessenden,  14  Allen,  124,  128  (1867)  ;  First  Parish  of  Sud- 
bury V.  Jones,  8  Cush.,  184,  190  (1851);  Curtis  v.  Eiddle,  7  Allen,  187 
(1863);  Doty  v.  Gorham,  5  Pick.,  487  (1827);  Wells  v.  Banister,  4 
Mass.,  514  (1808);  Taft  v.  Stetson,  117  Mass.,  471  (1875);  Hartwell  v. 
Kelly,  117  Mass.,  237  (1875);  Feimster  v.  Johnson,  64  N.  C,  259  (1870); 
Aldrich  v.  Parsons,  6.  N.  H.,  555  (1834);  Harris  v.  Gillingham,  6  N.  H., 
9  (1832);  Coleman  v.  Lewis,  27  Pa.  St.,  291  (1856);  Hunt  v.  Bay  State 
Iron  Co.,  97  Mass,  279  (1867);  Smith  v.  Benson,  1  Hill,  176  (1841); 
Alexander  v.  Touhy,  13  Kan.,  64  (1874),  also  holding  that  where  the 
lease  provided  that  the  tenant  might  remove  the  buildings  at  the  expiration 
of  his  term,  such  provision  could  not  be  construed  as  prohibiting  their 
removal  during  the  continuance  of  the  term;  Dame  v.  Dame,  38  N.  H., 
429  (1859);  Ham  v.  Kendall,  111  Mass.,  297  (1873);  Goodman  v.  Hanni- 
bal &  St.  Jo.  E.  E.  Co.,  45  Mo.,  33  (1869)  ;  Curtiss  v.  Hoyt,  19  Conn., 
165  (1848)  ;  Osgood  v.  Howard,  6  Me.,  452  (1830)  ;  Jewett  v.  Patridge, 
12  Me.,  243  (1835).  See,  however,  Ford  v.  Cobb,  20  N.  Y.,  344,  350 
(1859),  per  Denio,  J.;  Tifft  v,  Horton,  52  N.  Y,,  377,  380  (1873),  cited 
post,  in  this  chapter.  [Powers  v.  Harris,  68  Ala.,  409,  411  (1880);  Harris 
v.  Powers,  57  Ala.,  139,  144  (1876);  Harmon  v.  Kline,  52  Ark.,  251,  252 
(1889);   Myrick  v.  Bill,  3  Dak.,  284,  288   (1883);   Ott  v.  Specht,  8  Hous- 

103 


*(J7  THE  luAW  OF  FIXTURES.  [CHAP.  HI. 

ton,  61,  70  (Del.,  1887);  Biiiklcy  v.  Forkner,  117  Iml.,  176,  182  (1888); 
Brown  v.  Corbin,  121  Ind.,  455,  457  (1889);  Malott  v.  Price,  109  Ind., 
22,  25  (1886)  ;  District  Twp.  of  Corwin  v.  Moorhcad,  43  Iowa,  466,  469 
(1876)  ;  Melhop  v.  Meinhart,  70  Iowa,  685,  688  (1886) ;  Marshall  v. 
Bachcldor,  47  Kan.,  442,  444  (1891);  Commissioners  of  Rush  County  v. 
Stubbs,  25  Kan.,  322,  325  (1881)  ;  Weber  v.  Gardner,  80  S.  W.,  481  (Ky., 
1904);  Peaks  v.  Hutchinson,  96  Me.,  530,  535  (1902);  Walker  v.  Schin- 
del,  58  Md.,  360,  368  (1882);  Dolliver  v.  Ela,  128  Mass.,  557,  559  (1880); 
Schellenberg  v.  Detroit  Heating  Co.,  130  Mich.,  439,  442  (1902)  ;  Dcering 
V.  Ladd,  22  Fed.,  575,  576  (U.  S.  C.  C,  Minn.,  1884)  ;  Stout  v.  Stoppel, 
30  Minn.,  56,  58  (1882);  Warner  v.  Kenning,  25  Minn.,  173,  175  (1878); 
Decell  V.  McRee,  35  So.,  940  (Miss.,  1904) ;  Duke  v.  Shackleford,  56  Miss., 
552,  555  (1879);  State  v.  O'Neil  Lumber  Co.,  77  Mo.  App.,  538,  545 
(1898);  Priestly  v.  Johnson,  67  Mo.,  632,  636  (1878);  Arlington  Mill  Co. 
V.  Yates,  57  Neb.,  286,  292  (1898)  ;  Burleigh  v.  Ford,  59  N.  H.,  536,  538 
(1880);  Boston  Trust  Co.  v.  Bankers'  Tel.  Co.,  36  Fed.  288,  297  (U.  S. 
C.  C,  N.  Y.,  1888);  Kinsey  v.  Bailey,  16  Supr.  Ct.  (9  Hun.),  452  (1876); 
Farnsworth  v.  Western  U.  T.  Co.,  3  Silvernail,  30,  46  (Supr.  Ct.,  N.  Y., 
1889) ;  Sayles  v.  National  Water  Co.,  16  N.  Y.  Supp.,  555,  557  (1891)  ; 
Be  Smith,  119  Fed.,  1004  (U.  S.  Dist.  Ct.,  R.  I.,  1903)  ;  Sullivan  v.  Jones, 
14  S.  C,  362  (1880);  Andrews  v.  Auditor,  28  Gratt.,  115  (Va.,  1877); 
Page  V.  Urick,  31  Wash.,  601,  603  (1903)  ;  Watrous  Engine  Co.,  v.  Me- 
Cann,  21  Ont.  App.,  486  (1894);  see,  also,  Fresno  Bank  v.  Husted,  49 
Pac,  195,  197  (Cal.,  1897)  ;  Cochran  v.  FUnt,  57  N.  H.,  514,  543  (1877)  ; 
and,  post,  p.  *150,  as  to  such  agreements  between  landlord  and  tenant.] 

Gas  pipes  belonging  to  a  gas  company,  laid  in  the  streets  of  a  city  by 
permission  of  the  corporate  authorities,  do  not  become  the  property  of 
the  city  as  a  part  of  the  realty,  but  remain  the  personal  property  of  the 
company,  and  are  taxable  against  the  company  as  a  part  of  a  "manu- 
facturing establishment."  Memphis  Gas  Light  Co.  v.  The  State,  6  Cold., 
310  (1869).  [See  post,  p.  *367.  Gas  pipes  and  mains  affixed  at  points  re- 
mote from  the  real  estate  of  a  gas  company,  remain  personal  property,  and 
are  not  covered  by  a  prior  mortgage  of  the  realty.  Davidson  v.  Westchester 
Gas-Light  Co.,  99  N.  Y.,  558,  569  (1885).  A  mortgage  of  water  pipes 
and  mains  must  be  recorded  as  a  chattel  mortgage.  Dunsmuir  v.  Port 
Angeles  Water  Co.,  24  Wash.,  104  (1901).  The  owners  of  gas  mains  and 
pipes  laid  in  public  streets  cannot,  as  "land-owners,"  oppose  a  public 
improvement.  Cardiff  Corp.  Bill,  1  Rickards  &  S.,  324  (Eng.,  1894). 
Gas-pipe  laid  at  the  request  of  a  land-owner,  under  an  agreement  that  it 
should  belong  to  the  gas  company,  belongs  to  the  company.  Poughkeepsie 
Gas  Co.  V.  Citizens'  Gas  Co.,  27  Supr.  Ct.  (20  Hun.),  214,  216  (N.  Y., 
1880).] 

In  Taft  V.  Stetson  (supra),  A.  placed  upon  the  land  of  B.  a  steam  en- 
gine and  boiler  set  in  brick  laid  with  mortar,  under  an  agreement  by 
which  they  were  to  continue  to  belong  to  A.  with  the  right  of  removal 
whenever  he  saw  fit.  B.  afterwards  mortgaged  the  land  to  A.,  who  subse- 
quently took  possession  for  breach  of  condition,  and  afterwards  removed 

104 


CHAP,   UI.]  CONTRACTS  AS  TO  REMOVALi.  *67 

and  sold  the  engine  and  boiler.  On  a  bill  to  redeem  the  mortgage  it  was 
held,  that  the  engine  and  boiler  were  the  personal  property  of  A.,  and  did 
not  pass  by  and  were  not  included  in  the  mortgage,  and  that  therefore  A. 
was  not  accountable  to  B.  for  their  value.  [See  Hendy  v.  DinkerhofE,  57 
Cal.,  3,  6  (1880),  which  was  a  contest  between  the  "lessor"  of  a  steam- 
engine  and  boiler  and  the  vendor  of  the  land  under  contract;  and  Mc- 
LaughUn  v,  Lester,  4.  X.  Y.  St.  E.,  852  (1886),  where  the  grantee  of  a 
soap-factory  was  not  entitled  to  a  boiler  and  steam-pipe  which  was  per- 
sonal property  between  his  grantor  and  a  chattel  mortgagee  and  a  pur- 
chaser thereof  at  an  execution  sale,  the  annexation  appearing  to  be 
slight.]  f 

[A  conditional  sale  of  a  refrigerating-plant  for  a  brewery  is  valid  as 
against  the  assignee  of  the  buyer,  although  the  plant  becomes  a  part  of 
the  realty.  Hercules  Iron  Works  v.  Hummer,  49  111.  App.,  598  (1893). 
In  German  Sav.  Soc.  v.  Weber,  16  Wash.,  95,  103  (1896),  jambs,  trim- 
ming, wainscoting,  baseboards,  sashes,  doors  and  a  mautle-piece,  which 
were  placed  in  a  mortgaged  house,  all  being  removable  without  injury  to 
the  building  or  destroying  their  value  as  merchandise,  remained  the  per- 
sonal property  of  the  seller  reserving  title.  In  Vulcan  Iron  Co.  v.  Kapid 
City  Elevator  Co.,  9  Man.,  577  (1894),  contractors  bought  an  engine, 
boiler,  smokestack,  machinery  and  materials  for  an  elevator,  the  unpaid 
sellers  reserving  title  and  the  right  of  removal.  Held,  that  the  owners 
of  the  elevator  were  in  no  better  position  than  the  contractors.  So  long 
as  a  machine  has  not  been  accepted  by  the  buyer,  and  the  seller  retains 
the  right  of  removal,  it  is  a  chattel  as  between  the  parties,  although  so 
attached  to  a  building  provided  for  it  as  to  become  a  part  of  the  struc- 
ture. Frey-Sheckler  Co.  v.  Iowa  Brick  Co.,  104  Iowa,  494  (1898).  See 
Fletcher  v.  Evans,  140  Mass,  241,  242  (1885),  as  to  a  monument,  not  ac- 
cepted  nor   paid  for,  on   burial  lot.] 

In  Ashmun  v.  Williams,  8  Pick.,  402  (1829),  where  a  town  house  was 
erected  on  the  land  of  the  town  under  a  contract  with  the  builder,  that 
the  town  should  occupy  a  part  of  it  at  a  specified  rent  and  should  have 
a  right  to  purchase  it  at  an  appraised  value,  the  house  was  held  to  be  the 
personal  property  of  the  buiMcr  and  subject  to  attachment  for  his  debts. 
See,  also,  Yater  v.  Mullen,  23  Ind.,  562;  s.  c,  24  Id.,  277  (1865).  [Where 
a  one-story  frame  building  is  placed  upon  a  stone  foundation  upon  the 
land  of  another  with  an  understanding  that  it  should  remain  the  property 
of  the  builder,  and  that  the  lot  shouM  be  conveyed  to  him,  tho  ownership 
of  the  building  is  not  aflfected  by  a  refusal  of  the  land-owner  to  convey. 
Commissioners  of  Rush  County  v.  Stubbs,  25  Kan.,  322,  325  (1881).  See, 
also,  post,  *272.]  [Where  the  occupant  of  a  house  has  no  right,  title  nor 
estate  in  the  land  upon  which  it  is  situated,  it  can  be  sold  without  his 
wife's  signature.  Myrick  v.  Bill,  3  Dak.,  284,  292  (1883).]  [Where  a 
party-wall  is  constructed  upon  the  line  between  adjacent  lots  by  one  of  tho 
lot-owners,  under  an  agreement  that  the  other  is  to  pay  one-half  its  value 
when  he  elects  to  use  it,  the  builder  owns  it  absolutely  until  ho  is  paid 
one-half  the  value,  and  is  liable  for  any  damage  for  failing  to  maintain 

105 


*68  THE  LAW  OF  FIXTURES.  J  CHAP.  III. 

voluntarily  "without  such  an  agreement,  express  or  implied,  it 
becomes  the  property  of  the  owner  of  the  soil,  as  stated  in  a 
previous  chapter.  This  right  of  removal  is  also  valid  as  against 
[*^S]  the  *assignee  of  the  owner  of  the  soil,  with  notice  of  such 
an  agreement ;  and  a  recovery  of  the  land  in  an  action  to  recover 

it  in  a  safe  condition.  ]\Iickel  v.  York,  175  111.,  62  (1898).]  [Where 
a  husband  erected  a  house  upon  his  wife 's  land  under  an  agreement  that 
he  might  remove  it  at  pleasure,  and  an  insurance  policy  on  the  house  was 
issued  to  the  husband  and  wife  jointly,  it  was  held  to  be  entirely  com- 
petent for  all  parties  to  treat  this  as  joint  property  for  the  purpose  of 
insurance.  Kausal  v.  Minnesota  F.  Mut.  Fire  Ins.  Ass'n,  31  Minn.,  17, 
24  (1883).]  [A  storehouse  erected  upon  the  land  of  another  with  the 
right  of  removal,  is  real  estate  as  between  the  owner  of  the  building  and 
his  tenant.  Blanchard  v.  Bowers,  67  Vt.,  403,  405  (1895).]  [A  shop,  which 
the  builder  had  a  right  to  remove,  was  mortgaged  by  him  as  realty,  and 
afterwards  he  made  an  assignment  for  the  benefit  of  his  creditors.  Held, 
that,  as  between  the  mortgagee  and  the  assignee,  the  building  was  realty. 
Stafford  v.  Adair,  57  Vt.,  63,  66  (1885).]  [A  small  house  erected  upon 
the  land  of  another  with  the  latter 's  consent,  although  it  may  belong  to 
the  builder,  partakes  so  much  of  the  nature  of  realty  that  it  cannot  be 
exempted  as  personal  property.  Lawson  v.  S.  T.  Barlow  Co.,  21  Ky.  Law 
E.,  308,  309  (1899).]  [A  provision  in  a  contract  that  the  title,  ownership, 
and  right  of  possession  of  machinery  in  a  grist-mill  shall  remain  in  the 
party  furnishing  it,  until  paid,  does  not  make  it  personal  property  to  the 
extent  of  defeating  a  mechanic's  lien.  Cooper  v.  Cleghorn,  50  Wis.,  113, 
121  (1880).]  In  Connecticut,  however,  a  distinction  seems  to  have  been 
taken  between  buildings  and  other  annexations  uopn  the  soil  of  another, 
the  rule  being  declared  to  be,  "that  a  fixed  and  permanent  building 
erected  upon  another's  land,  even  by  his  license,  became  his  property; 
but  if  in  its  nature  and  structure  it  was  capable  of  being  removed,  and  a 
removal  was  contemplated  by  the  parties,  it  was  personal  estate  in  the 
builder;  and  where  the  license  was  improperly  revoked,  resort  must  be 
had  to  a  court  of  chancery."  Benedict  v.  Benedict,  5  Day,  464,  467  (1813) ; 
Prince  v.  Case,  10  Conn.,  375,  379  (1835);  Baldwin  v.  Breed,  16  Conn., 
60,  68  (1843).  See,  also,  Leland  v.  Gassett,  17  Vt.,  411  (1845).  No 
good  reason  is  perceived  for  such  a  distinction,  and  it  is  believed  to  be  con- 
trary to  the  weight  of  American  authority.  See  the  cases  cited  at  the  be- 
ginning  of   this   note. 

The  owner  of  a  boiler  in  the  building  of  another,  resting  upon  a  brick 
or  stone  foundation  and  connected  with  the  machinery  of  the  mill  by  or- 
dinary pipes,  such  boiler  having  been  purchased  and  placed  there  by  the 
lessees  of  the  mill,  and  by  them  sold  to  the  plaintiff,  who  had  no  interest 
in  the  freehold,  may  recover  compensation  from  one  who  has  hired  and 
used  it,  whether  it  is  real  or  personal  property.  Eaddin  v.  Kidder,  111 
Mass.,  44    (1872). 

106 


CHAP,  m.]  CONTRACTS  AS  TO  REMOVAL,  *68 

the  possession  thereof  brought  by  the  owner  or  his  assignee  with 
notice,  does  not  divest  the  title  of  the  builder  in  the  house.^ 

A  limitation  to  the  right  of  the  parties  to  change,  by  their 
agreements,  the  status  of  property  from  that  which  the  law  would 
assign  to  it  in  the  absence  of  a  special  agreement,  has,  however, 
been  made  in  some  cases,  and  the  rule  has  been  stated  to  be, 
that  whether  an  agreement  shall  preserve  the  character  of  per- 
sonalty in  things  so  affixed  to  the  freehold,  as  that  but  for  such 
agreement,  they  could  become  part  of  the  realty,  depends  upon 
their  essential  character,  and  the  mode  in  which  they  are  an- 
nexed, e.  g.,  whether  they  can  be  removed  without  serious  dam- 
age to  the  freehold,  or  substantially  destroying  their  own  quali- 
ties and  value.-     Where  the  rights  of  third  parties  intervene, 

iDame  v.  Dame,  38  N.  H.,  429  (1859).  [Western  Union  Telegraph  Co. 
V.  Burlington  &  S.  W.  R'y  Co.,  11  Fed.,  1  (U.  S.  C.  C,  Iowa,  1882).  See, 
also,  post,  p.  *316).] 

[The  right  to  remove  a  steam-engine  exists  as  against  a  trustee  in 
bankruptcy.     Be  Smith,   119   Fed.,   1004    (U.   S.   Dist.   Ct.,   R.   I.,   1903).] 

2Fortman  v.  Goepper,  14  Ohio  St.,  558,  564  (1863);  Ford  v.  Cobb,  20 
N.  Y,,  344  (1859) ;  Sheldon  v.  Edwards,  35  N.  Y.,  283  (1866)  ;  Voorhees 
V.  McGinnis,  48  N.  Y.,  278,  287  (1872);  Eaves  v.  Estis,  10  Kan.,  314 
(1872).  See,  also,  Tifft  v.  Horton,  53  N.  Y.,  377,  380  (1873);  Benedict 
V.  Benedict,  Prince  v.  Case,  Baldwin  v.  Breed,  cited,  supra.  [See,  ante, 
p.  *23.  Western  Union  Telegraph  Co.  v.  Burlington  &  S.  W.  E 'y  Co.,  11 
Fed.,  1  (U.  S.  C.  C,  Iowa,  1882) ;  Southbridge  Sav.  Bank  v.  Exetef 
Mach.  Works,  127  Mass.,  542,  545  (1879);  Andrews  v.  Powers,  66  App. 
Div.,  216  (N.  Y.,  1901);  German  Sav.  Bank  v.  Weber,  16  Wash.,  95,  103 
(1896);  see,  also,  Kaestner  v.  Day,  65  111.  App.,  623,  629  (1895);  Mc- 
Junkin  v.  Dupree,  44  Tex.,  500,  501   (1876).] 

[Where  machinery  has  been  so  annexed  that  it  cannot  be  removed 
without  material  injury  to  the  realty,  a  provision  in  a  contract  that,  until 
paid  for,  the  title,  ownership  and  right  to  possession  thereof  shall  re- 
main in  the  party  furnishing  it,  does  not  defeat  his  claim  for  a  me- 
chanics' lien.     Cooper  v.  Cleghorn,  50  Wis.,  113,  121   (1880).] 

[Where  a  statute  gives  a  mechanics'  lien  upon  improvements  erected 
by  a  lessee,  it  does  not  extend  to  such  as  are  so  merged  in  the  freehold  as 
to  bo  incapable  of  severance.    Eothe  v.  Bellingrath,  71  Ala.,  55,  59  (1881).] 

[That  some  of  the  articles  cannot  bo  removed  from  a  building  without 
being  taken  to  pieces,  does  not  affect  the  question  of  ownersliip.  Walker 
v.   Schindel,  58   Md.,   360,   369    (1882).] 

[That  a  frame  building  can  be  moved  without  destruction  is  evidenced 
by  its  size,  and  by  the  fact  that  it  has  been  once  moved.  Commissioners 
of  Rush  County  v.  Stubbs,   25  Kan.,   322,   325    (1881).] 

[Plaintiff,  under  contract,  erected  a  windmill  pump  upon  a  stock-farm. 

107 


*69  THE  LAW  OP  FIXTURES.  [CHAP.  lU. 

the  propriety  and  necessity  of  such  a  limitation  will  be  very 
readily  conceded;  but,  as  between  the  immediate  parties  to  the 
agreement,  the  limitation  seems,  to  say  the  least,  sufficiently 
[*69]  strict;  and  where,  as  in  the  case  of  a  house,  *the  materials 
might  be  of  value  after  severance,  no  more  reason  is  perceived 
why  such  an  agreement  should  not  be  effectual  as  between  the 
parties,  than  in  the  case  of  a  fixture  that  might  be  removed  unin- 
jured, the  difference  between  the  two  cases  being  not  one  of  prin- 
ciple, but  simply  of  degree,  one  of  more  or  less.^  As  such  an 
agreement  relates  to  personal  property,  it  may  be  by  parol.^ 

The  rule  also  applies  to  annexations  made  by  a  partnership 
to  land  belonging  to  one  of  the  partners,  with  an  understanding 

The  mill  not  fulfilling  conditions,  the  land-owner  rescinded  the  contract, 
and  notified  the  plaintiff  to  remove  it.  The  plaintiff  contended  that,  the 
improvements  having  become  a  part  of  the  realty,  the  defendant  must 
accept  them  and  prove  damages.  The  court  held  that,  as  the  improvements 
could  be  removed  without  any  particular  injury  to  the  land,  the  defendant 
need  not  accept  them  if  of  no  use.  Wernli  v.  Collins,  87  Iowa,  548,  551 
(1893).] 

1  See  the  cases  already  cited  in  this  chapter;  also  x>ost,  mortgagor  and 
mortgagee. 

2  Curtis  V,  Eiddle,  7  Allen,  185  (1863).  In  Curtis  v.  Kiddle,  where  such 
house  was  erected  by  C,  on  the  land  and  with  the  consent  of  E.,  with 
money  furnished  by  W.,  who  already  held  a  mortgage  on  the  land,  and 
who  agreed  with  C.  to  advance  the  money  and  also  assist  in  erecting  the 
house,  and  take  another  mortgage  to  secure  what  he  should  so  advance, 
which  mortgage  was  afterwards  executed  by  R.,  but  without  any  special 
mention  of  the  buildings  thereon,  it  was  Jield,  that  assuming  that  the 
dwelling  house  in  question  was  personal  property  when  first  erected,  yet 
the  parol  agreement  of  C,  authorizing  R.  to  mortgage  it  with  the  land, 
was  equally  valid  with  the  verbal  agreement  that  he,  C,  should  have  the 
house  as  personal  property,  and  the  effect  of  it  would  be  to  annex  the  house 
to  the  realty  so  far  as  the  mortgage  was  concerned,  and  that  R.,  whose 
mortgage  to  W.  contained  covenants  of  warranty,  and  who  was  then 
occupying  the  house,  would  hold  the  house  as  against  a  creditor  of  C, 
who  attached  the  house  as  C.  's  personal  property,  intermediate  the  agree- 
ment above  referred  to  and  the  execution  of  the  mortgage.  The  fact  that 
C.  also  made  a  fraudulent  bill  of  sale  of  the  house  to  R.  prior  to  the  levy 
and  the  execution  of  the  mortgage,  was  regarded  as  immaterial;  while  it 
would  pass  no  title  as  against  C.  's  creditors,  it  would  not  prevent  the 
house  from  passing  to  W.  by  the  mortgage.  [Walker  v.  Schindel,  58  Md., 
360,  367  (1882);  Tyson  v.  Post,  108  N.  Y.,  217,  221  (1888);  Green  v. 
Gresham,  21  Tex.  Civ.  App.,  601,  604  (1899);  see,  also,  Washband  v. 
Washband,  24  Conn.,  500  (1856) ;  Watertown  Steam  Engine  Co.  v.  Davis, 

108 


CHAP,  m.]  CONTRACTS  AS  TO  REMOVAL,  *69 

that  the  chattel  annexed  might  be  removed  by  the  owners  when 
deemed  proper,  and  the  interest  of  the  individual  partner,  to 
whose  land  the  chattel  is  annexed,  in  such  chattel,  is  personalty, 
and  not  realty,^ 

The  better  reason  and  the  weight  of  authority  is,  that  such 
agreement  or  understanding,  express  or  implied,  must  have  ex- 
isted prior  to  the  annexation  of  the  chattel  to  the  land ;  and  that 
if  the  thing  is  annexed  by  a  stranger,  without  prior  consent  of 

5  Houston  (Del.),  192,  208;  Farnsworth  v.  Western  U.  T.  Co.,  3  Silveil 
nail,  30,  52    (Supr.  Ct.,  N.  Y.,  1889).] 

[An  agreement  between  an  owner  of  land,  and  one  building  a  house 
thereon  with  right  of  removal,  is  not  within  the  statute  of  frauds  of  Iowa, 
even  conceding  that  the  contract  created  an  interest  in  lands.  District 
Twp.  of  Corwin  v.   Moorehead,  43  Iowa,  466,  468    (1876).] 

3  See  McDavid  v.  Wood,  5  Heisk.,  95  (1871);  Saunders  v.  Stallings,  5 
Heisk.,  65  (1871);  Trappes  v.  Harter,  3  Tyrwh.,  603,  617  (1833);  Ex 
parte  Lloyd,  3  Dea.  &  Ch.,  765  (1834);  s.  c,  1  Mont.  &  Ayr.,  494. 
[Young  V.  Baxter,  55  Ind.,  188,  192  (1876) ;  Walker  v.  Schindel,  58  Md., 
360,  367  (1882);  Borland  v.  Hahn,  25  N.  Y.  Supp.,  131  (1893);  see,  also, 
Koyce  v.  Latshaw,  15  Colo.  App.,  420.]  See,  however,  Baldwin  v.  Breed, 
16  Conn.,  60    (1843)  ;   also   (ante)   page  *59,  note  1. 

[Where  a  firm  has  a  right  to  remove  buildings  erected  upon  land  owned 
by  one  of  the  partners,  the  buildings  remain  personalty,  as  they  are  chat- 
tels as  to  the  partner  having  no  interest  in  the  land,  and  they  can  not  be 
realty  as  to  one  interest  and  personalty  as  to  another.  Kerr  v.  Kingsbury, 
39  Mich.,  150,  156   (1878).] 

[Where  land  is  owned  by  tenants  in  common,  who  are  partners,  but 
the  land  is  not  partnership  property,  annexation  made  by  the  firm  will  bo 
treated  as  if  annexed  by  one  not  having  an  interest  in  the  soil,  and  not 
as  if  annexed  by  owners.  Robertson  v.  Corsett,  39  Mich.,  777,  783 
(1878).] 

[Where  the  owner  of  the  fee  grants  to  a  railroad  company  a  right  of 
way  as  long  as  used,  and  then  a  firm,  of  which  he  is  a  member,  erects  a 
warehouse  upon  such  right  of  way  with  the  consent  of  the  railroad  com- 
pany, which  warehouse  is  subsequently  sold,  as  between  such  purchaser 
and  a  grantee  and  heir  of  the  owner  of  tlio  fee,  the  warehouse  is  personal 
property.     Evans  v.   McLucas,  15  S.  C,  67    (1880).] 

[Where  four  cabins  are  placed  by  one  partner  upon  a  plantation  be- 
longing to  tlif!  other,  the  cost  of  whiili,  iindrr  flic  cmifract,  was  to  bo 
borne  by  the  latter,  the  partncrslii])  has  no  property  in  them.  Penn  v. 
Citizens  Bank,  32  La.  Ann.,  195,  109   (1880).] 

[Although  machinery  belonging  to  a  partnership  is,  while  upon  the  land 
of  one  of  the  partners,  personal  property,  if  the  landowner  sells  the  land 
and  his  interest  in  the  machinery  to  his  partner,  and  the  latter  continues 

109 


^lO  THE  LAW  OF  FIXTURES.  [CHAT.   111. 

[*70]  *the  owner  of  the  land,  or  any  contract  with  him,  express 
or  inipliod,  it  cannot  afterwards  become  personal  property  by  the 
mere  oral  assent  of  the  land  owner,  without  a  severance  from 
the  land.^     It  is  not  necessar}^,  however,  that  such  agreement  as 

to  use  the  machinery  in  connection  with  the  land,  such  machinery  becomes 
a  part  of  the  realty.     Bradley  v.  Ritchie,  12  Pa.  Dist.,  658    (1903).] 

[A  large  barn,  resting  upon  a  stone  foundation  in  the  earth,  although 
built  in  a  partnership  transaction  upon  the  land  of  one  of  the  partners, 
remains  real  estate,  and  can  not  be  levied  upon  as  personal  property  in 
the  absence  of  a  specific  agreement  that  it  was  to  remain  such.  Histe  v. 
Buckley,   8   Ohio   C.   C,  470,  473    (1894).] 

iGibbs  V.  Esty,  15  Gray,  587  (1860);  Ex  parte  Ames,  1  Lowell's  Dec, 
567  (1871);  s.  C,  7  Nat.  Bank  Reg.,  236;  Madigan  v.  McCarthy,  108 
Mass.,  376  (1871).  In  this  case  the  only  fact  bearing  upon  this  point, 
was  that  "it  is  admitted  that  the  Pickmans  [the  owners  of  the  land  under 
whom  the  occupier  was  tenant  at  will],  never  would  have  claimed  the 
building,"  and  it  was  held,  that,  though  this  might  be  evidence  of  such  a 
previous  consent  that  the  building  should  bo  put  on  the  land  as  a  personal 
chattel,  yet  it  was  not  of  itself,  without  the  aid  of  other  proof,  sufficient 
to  prove  it,  it  being  equally  consistent  with  the  idea  that  the  house  was 
put  upon  the  land  without  their  consent,  but  that  they,  by  a  subsequent 
assent,  were  willing,  upon  equitable  considerations,  to  allow  the  tenant 
the  benefit  of  his  expenditures.  In  Ex  parte  Ames  (supra),  per  Lowell,  J., 
it  is  said:  "It  is  argued  on  behalf  of  the  assignees,  that  a  contract  to 
treat  fixtures  as  chattels,  whether  it  be  express  or  implied,  must  be  made 
before  they  are  actually  affixed  to  the  realty;  and  for  this  some  remarks 
of  Dewey,  J.,  delivering  the  opinion  of  the  court  in  Gibbs  v.  Esty,  15 
Gray,  587,  are  quoted.  But  those  remarks  appear  to  be  intended  only  for 
parol  agreements  concerning  buildings  and  fixtures  annexed  by  a  stranger, 
and  to  mean  that  such  a  parol  agreement  or  license  cannot  change  real 
into  personal  estate  after  its  character  has  been  once  established."  See, 
also,  Burk  v.  Hollis,  98  Mass.,  55  (1867),  where  it  is  held  that  where  a 
house,  built  on  the  land  of  another  as  personalty,  is  by  him  conveyed  to 
the  owner  of  the  land,  it  at  once  becomes  real  estate,  and  the  owner  of 
the  land  cannot,  by  executing  a  chattel  mortgage  to  secure  part  of  the 
purchase  money,  sever  and  convey  as  personal  estate,  any  interest  in  it, 
merely  by  treating  it  as  personal  estate  in  the  instrument  of  conveyance. 
[Bacon  v.  Bowdoin,  43  Mass.,  591,  597  (1841).  Buildings,  which  had  been 
erected  upon  the  lands  of  another  without  permission,  were  sold  by  the 
occupant;  but  before  the  purchaser  removed  them,  the  seller  acquired 
title  to  the  land,  and  died.  The  widow  and  heirs  claimed  the  buildings, 
insisting  that  the  buildings,  at  the  time  of  their  erection,  became  the 
property  of  the  former  landowner,  and  the  sale  thereof  passed  no  title; 
but  the  court  held  that  the  buildings  were  personal  property  at  the  time 
of  the  sale,  the  title  to  which  was  impliedly  warranted,  and  the  heirs  had 
no  better  right  than  the  decedent.     Myrick  v.  Bill,  3  Dak.,   284    (1883).] 

110 


CHAP.  UI.]  CONTRACTS  AS  TO  REMOVAL.  *71 

to  sepa*rate  ownership  and  right  of  removal  should  be  [*71] 
express;  it  may  be  implied  from  the  circumstances  of  the  case, 
the  relations  of  the  parties,  and  from  usage.^     Thus,  it  is  well 

In  Fuller  v.  Tabor,  39  Me.,  519  (1855),  however,  where  a  party  sold  a 
shop  to  another,  under  an  agreement  that  it  was  to  remain  his  till  paid 
for,  and  the  house  was  moved  upon  the  land  of  a  third  person,  and  under- 
pinned and  fitted  for  a  dwelling  without  the  previous  knowledge  or  con- 
sent of  the  owner  of  the  land,  but  who  afterwards  consented  to  its  remain- 
ing there,  it  was  held,  m  an  action  between  the  original  owner  of  the 
house,  who  had  not  been  paid  therefor,  and  the  vendee  of  the  original 
purchaser,  that  the  house  was  personal  property.  "The  subsequent  assent 
of  Hoxie  [the  owner  of  the  land],  with  a  full  knowledge  of  all  the  facts, 
was  equivalent  to  a  prior  agreement,  and  relates  back  to  the  time  the 
house  was  put  upon  his  land.  It  would  be  absurd  to  hold  that  a  man  is 
compelled  to  become  the  owner  of  a  house  against  his  will,  simply  because 
his  neighbor,  acting  under  a  misapprehension  as  to  the  title,  had  placed 
it  upon  his  land  without  his  knowledge  and  consent."  It  will  be  observed 
that  in  this  case  the  question  arose  between  third  parties,  and  not  be- 
tween the  owner  or  party  annexing  the  structure  and  the  owner  of  the 
land.  See  chap.  2,  page  *62.  See,  also,  Hines  v.  Ament,  43  Mo.,  298 
(1869),  where  it  was  held,  that  permission  to  occupy  for  a  series  of  years 
and  a  subsequent  direction  to  remove  the  article  in  question  (a  line  fence), 
were  equivalent  to  an  original  agreement  to  place  it  there;  Shell  v.  Hay- 
wood, 16  Penn.  St.,  530  (1851),  and  cases  there  cited;  Foster  v.  Mabe,  4 
Ala.,  402  (1842);  also  the  subject  of  severance,  considered  ante,  ch.  1. 
Perhaps  a  distinction  might  properly  be  made  as  to  the  persons  between 
■whom  the  questions  arise,  i.  c,  whether  between  the  owner  of  the  soil 
and  the  party  making  the  annexation,  or  collaterally  between  third  par- 
ties.    See  ante,  p.  *62. 

[See  Aldrich  v.  Husband,  131  Mass.,  480,  481  (1881),  and  Murray  v. 
Bender,  125  Fed.,  705,  712  (U.  S.  C.  C.  A.,  Mont.,  1903),  as  sustaining 
the  statement  made  in  the  text.  See,  also,  Tie  Perkins'  Est.,  26  Atl.,  637, 
638  (Vt.,  1893),  where  the  jirior  contract  was  void.  Montgomery  County 
V.  Bean,  82  S.  W.,  240   (Ky.,  Sept.  28,  1904).] 

iSec  Howard  v.  Fessenden,  14  Allen,  128  (1867);  First  Parish  of  Sud- 
bury v.  Jones,  8  Cush.,  184,  190  (1851).  See  this  subject  further  con- 
sidered in  the  chapter  on  Landlord  and  Tenant,  Trade  Fixtures,  etc. 
[Brannon  v.  Vaughn,  66  Ark.,  87,  90  (1898);  Price  v.  Malott,  85  Ind., 
266,  269  (1882);  Korbe  v.  Barbour,  130  Mass.,  255,  257  (1881);  Batchel- 
ler  V.  Commercial  Assurance  Co.,  143  Mass.,  495  (1887);  Northwestern 
Ins.  Co.  v.  George,  77  Minn.,  319,  325  (>899)  ;  United  States  v.  Smith, 
110  Fed.,  338  (U.  S.  Dist.  Ct.,  N.  Y.,  1901);  Alberson  v.  Elk  Cr.  Min. 
Co.,  39  Ore.,  552,  .561  (1901);  Gough  v.  Wood  [1894],  1  Q.  B.,  713;  see, 
also,  Montooth  v.  Gamble,  123  Pa.  St.,  240  (1888);  Lion  Ins.  Co.  v. 
Wicker,  93  Tex.,  397,  398   (1900).] 

[An  engine,  boiler,  machinery  and  buildings  necessary  for  sawing 
lumber,  erected   by   a  grantee  of   the   timber  under  permission   from  the 

111 


*71  THE  LAW  OP  FIXTURES.  [CHAP.  HI. 

settled  tliat  an  agreement  for  the  right  of  removal,  or  that  the 
article  annexed  shall  remain  as  the  personal  property  of  the 
party  annexing  it  to  the  land  of  another,  may  be  implied  from 
the  fact  that  it  was  annexed  with  the  previous  consent  or  license 
of  the  owner  of  the  land,  when  a  different  intention  of  the  par- 
ties is  not  indicated  by  express  agreement,  the  interest  of  the 
party  making  the  erection,  or  his  relation  to  the  title  of  the 
land.-    Such  agreement  or  understanding  may  also  be  shown  by 

owner  of  the  land,  are  removable  after  all  the  timber  granted  has  been 
sawed.     Johnson  v.  Willinghby,  3  Tenn.  Cas.   (Shannon),  338   (1875).] 

[Where  a  statute  provides  that  a  school  district  shall  not  build  a  school- 
house  "on  any  site  for  which  they  have  not  a  title  in  fee,  without  the 
privilege  to  remove  the  same,"  the  right  to  remove  will  be  impKed. 
Burns  v.  School  District,  61  Neb.,  351,  353  (1901).] 

[Where  the  equitable  title  to  land  is  in  one  person,  and  the  ownership 
of  chattels  in  another,  they  remain  personal  property.  Henkle  v.  Dillon, 
15  Ore.,  610,  616   (1888).] 

[Where  the  owners  of  a  mine  erected  buildings  and  machinery  upon 
the  surface,  the  surface  being  owned  by  others,  the  mine-owners  could 
remove  such  buildings  and  machinery  while  their  interest  continued.  Wake 
V.  Hall  (1883),  8  App.  Cas.,  195,  aff'g  (1880)   7  Q.  B.  D.,  295.] 

[An  understanding  that  the  landowner,  under  certain  circumstances,  is 
to  pay  for  erections,  implies  ownership  in  the  party  making  them.  Korbe 
V.  Barbour,   130   Mass.,   255,   258    (1881).] 

2  Hinckley  v,  Baxter,  13  Allen,  139  (1866)  ;  Howard  v.  Fessenden,  14 
Allen,  124,  128  (1867)  ;  Doty  v.  Gorham,  5  Pick.,  487  (1827)  ;  Weathersby 
V.  Sleeper,  42  Miss.,  732  (1869)  ;  Northern  Central  Railway  Co.  v.  Canton 
Co.,  30  Md.,  347  (1869);  s.  C,  8  Am.  Law  Eeg.  (N.  S.),  540.  [Wiggins 
Ferry  Co.  v.  Ohio  &  Miss.  R'y  Co.,  142  U.  S.,  396,  415  (1892);  Webb  v. 
State,  52  Ala.,  422,  423  (1875) ;  Medley  v.  People,  49  111.  App.,  218,  223 
(1892)  ;  Fischer  v.  Johnson,  106  Iowa,  181,  186  (1898) ;  Walton  v.  Wray, 
54  Iowa,  531,  534  (1880)  ;  Heywood  v.  Tillson,  75  Me.,  225,  229  (1883)  ; 
Merchants'  Bank  v.  Stanton,  55  Minn.,  211,  219  (1893);  62  Minn.,  204; 
Ford  v.  Burleigh,  62  N.  H.,  388,  391  (1882)  ;  Pope  v.  Skinkle,  45  N.  J. 
Law,  39,  41  (1883);  Cayuga  R'y  Co.  v.  Niles,  20  Supr.  Ct.  (13  Hun),  170, 
172  (N.  Y.,  1878)  ;  McNair  v.  Rochester,  N.  P.  &  P.  R.  R.  Co.,  14  N.  Y. 
Supp.,  39,  41  (1891)  ;  Western  N.  C.  R.  R.  v.  Deal,  90  N.  C,  110  (1884)  ; 
see,  also,  Stirman  v.  Cravens,  33  Ark.,  376,  385  (1878)  ;  Omaha  Bridge  & 
T.  R'y  Co.  V.  Whitney,  94  N.  W.,  513,  516  (Neb.,  1903);  99  N.  W.,  525, 
528  (Neb.,  1904)  ;  Freeman  v.  Leonard,  99  N.  C,  274  (1888)  ;  Burnside 
V.  Marcus,  17  Up.  Can.  C.  P.,  430  (1867).]  A.  granted  to  B.  and  his 
heirs,  liberty,  license,  power  and  authority  to  build  on  his,  A. 's  land,  a 
bridge  for  public  use,  and  B.  covenanted  to  build  the  bridge  in  question, 
and  to  maintain  the  same  in  repair,  and  that  such  bridge,  and  the  road 
leading  to  and  from  it,  should  forever  remain  as  a  public  highway,  free 

112 


OPT  A  p.  ni.]  CONTRACTS  AS  TO  REMOVAL.  *71 

from  toll;  held,  that  as  against  a  wrong  doer,  the  property  in  the  ma- 
terials of  the  bridge  when  built  and  dedicated  to  the  public,  still  re- 
mained in  B.,  subject  to  the  public  easement,  and  when  severed  and  taken 
away  by  a  wrong  doer,  he  might  maintain  trespass  de  bonis  asportatis 
therefor.     Harrison  v.  Parker,  6  East,  154    (1805). 

[Public  bridges  do  not  belong  to  the  owner  of  the  land  upon  which  they 
rest.  Shirk  v.  Board  of  Commissioners,  106  Ind.,  573  (1886) ;  Parsons  v. 
Clark,  76  Me.,  476,  479  (1884) ;  Commonwealth  v.  Fitzgerald,  164  Mass., 
587,  590    (1895).] 

[Telephone  poles,  erected  in  a  public  street  by  license,  the  location  of 
which  the  municipal  authorities  have  authority  to  change  from  time  to 
time  as  conditions  seem  to  require,  are  subject  to  levy  as  personal  prop- 
erty.    Keadfield  Telephone  Co.  v.  Cyr,  95  Me.,  287  (1901).] 

[See  Mayer  v.  Waters,  45  Kan.,  78,  82  (1890),  as  to  buildings  erected 
upon  government  land  by  'post-traders.  A  building  erected  by  a  post- 
trader  upon  a  military  reservation  for  the  purpose  of  carrying  on  his 
business,  is  removable  by  him,  but  may  not  be  leased  nor  sold  without 
permission.     14  Ops.  Att'y  Gen.,  125.] 

[The  principle  stated  in  the  text  is  the  same  if  part  of  the  structure  (in 
this  case,  water-pipe)  is  underground.  Salley  v.  Eobinson,  96  Me.,  474, 
479  (1902).  See,  also,  Moore  v.  New  Orleans  Waterworks  Co.,  114  Fed., 
380,  381  (U.  S.  C.  C,  La.,  1902),  as  to  water-pipes  in  public  streets.] 

In  Baldwin  v.  Breed,  16  Conn.,  60  (1843),  where  the  question  arose  be- 
tween tenants  in  common,  it  was  held  that  the  consent  of  one  of  the 
tenants  in  common  to  the  erection  by  his  co-tenant,  of  a  store  on  the  land, 
did  not  authorize  the  inference  that  either  party  contemplated  that  it 
should  be  the  separate  property  of  such  co-tenant,  or  that  he  might  remove 
it.  See,  also,  Benedict  v.  Benedict,  5  Day,  464  (1813) ;  Prince  v.  Case, 
10  Conn.,  378  (1835)  ;  also  (ante)  pages  *58,  *59,  and  notes.  The  right  of 
the  owner  of  a  dwelling  house  standing  upon  the  land  of  another,  to  hold 
it  as  personalty,  is  not  lost  by  his  moving  out  of  the  same  preparatory  to 
a  sale  of  it  as  personalty,  especially  where  he  was  authorized  by  one  of  the 
tenants  in  common  of  the  land  to  allow  the  building  to  remain  until  he 
could  dispose  of  it.     Howard  v.  Fesseuden   (supra). 

[A  reservation,  by  the  grantor  of  land,  of  the  right  to  erect  a  dwelling- 
house,  does  not  give  the  right  to  remove  the  house.  Johnson  v.  Willinghby, 
3  Tenn.  Cas.   (Shannon),  338   (1875).] 

[That  the  owner  of  land  mortgaged  it  to  secure  a  debt  owing  by  him- 
self and  another  who  erected  a  building  upon  the  land,  has  no  bearing 
upon  the  question  whether  such  building  was  to  remain  the  personal  prop- 
erty of  the  builder.  Neither  docs  the  fact  that  the  building  was  erected 
with  money  furnished  to  the  builder  by  a  third  party.  Merchants'  Bank 
V.  Stanton,  55   Minn.,  211,  218   (1893).] 

[In  Pope  V.  Skinkle,  45  N.  J.  Law,  39,  41   (1883),  it  is  said,  in  regard 

to  buildings  erected   by  permission,   that  "the  more   reasonable  inference 

would  be  that  the  builder  had  designed  not  to  part  with  his  property,  and 

the  landowner  had  consented  on  that  understanding.     The  fact  that  the 

8  113 


*71  THE  LAW  OP  FIXTURES.  JCHAP.  III. 

former  secured  permission  to  buiUl  imlicates  that  he  sought  to  avoid  the 
consequences  of  building  without  permission,  among  which  by  far  the 
most  serious  would  ordinarily  be  the  loss  of  the  labor  and  materials  which 
he  was  about  to  convert  into  a  building."  See  Wheeler  v.  McFerron,  33 
Ore.,  22,  25  (1898).  Buildings  erected  by  a  husband  upon  the  land  of  his 
wife  with  her  knowledge  and  consent,  do  not  necessarily  become  hers 
because  attached  to  her  land.  Ferguson  v.  Spear,  65  Me.,  277,  280 
(1876).] 

[A  tramway  connecting  a  saw-mill  with  a  railroad,  was  laid  by  per- 
mission, over  the  land  of  another,  which  mill  and  the  right  to  run  the 
tramway  was  subsequently  sold.  The  purchaser  relaid  the  tramway  with 
new-  rails,  straightening  his  track  somewhat,  the  landowner  offering  no 
objection.  Held,  that  the  purchaser  had  a  right  to  remove  the  tramway. 
DeLaine  v.  Alderman,   31   S.  C,   267    (1889).] 

[A  grantor  of  land  reserved  the  mines  and  minerals  and  the  right  to 
him,  his  servants  and  carriages,  to  enter,  mine  and  carry  away  same.  He 
leased  the  mines  and  mining  right,  the  lessee  laying  a  railway  for  six 
miles  over  the  granted  lands.  The  rails  were  levied  upon  and  purchased 
by  the  lessor,  but  not  removed  by  him,  and  he  evicted  the  lessee.  Held, 
that  the  lessor  was  entitled  to  the  rails  as  against  the  landowner.  Antrim 
v.  Dobbs   (1891),  30  L.  E.,  Ire.,  424.] 

[If  a  structure  is  erected  upon  land  with  the  consent  of  the  life-tenant, 
it  will  be  the  personal  property  of  the  builder,  and  the  remainderman 
acquires  no  right  thereto.  Chicago  &  Alton  E.  E.  Co.  v.  Goodwin,  111 
111.,  273,  281    (1884).] 

[Where  an  agreement  by  a  landowner  allowed  the  owners  of  a  mill  the 
use  of  the  land  "as  long  as  they  keep  the  mill  upon  it,"  the  plain  in- 
ference is  that  the  owners  of  the  mill  have  the  right  to  remove  it  at 
discretion.     Malott  v.  Price,   109   Ind.,   22,   24    (1886).] 

[If  a  licensee  erects  a  building,  he  is  entitled,  upon  revocation,  to  a 
reasonable  opportunity  to  remove  it,  if  such  removal  works  no  serious 
injury  to  the  land.  Ingalls  v.  St.  Paul,  M.  &  M.  E'y  Co.,  39  Minn.,  479 
(1888).] 

[Where  the  grantee  of  a  lot  under  a  void  deed,  erects  a  building  thereon 
in  good  faith,  the  grantor  having  knowledge  and  not  objecting,  it  operates 
as  implied  license  by  the  grantor  to  make  the  improvement;  and  upon  the 
grantor  claiming  the  premises,  the  grantee  has  the  right  to  remove  the 
structure  although  the  annexation  to  the  soil  is  of  a  permanent  nature 
and  made  with  the  intention  of  not  removing  it,  and  the  occupancy  of  the 
grantee  has  not  been  disturbed.  Little  v.  Willford,  31  Minn.,  173 
(1883).] 

[A  saw-mill  erected  upon  the  land  of  another  under  an  agreement  that, 
at  a  subsequent  time,  the  landowner  will  buy  the  mill,  or  the  mill-owner 
will  buy  the  land,  does  not  make  the  mill  real  estate  for  the  purpose  of 
attachment.     Dodge  v.  Beattie,  61   N.  H.,  101    (1881).] 

[If  the  head  of  a  family  owns  a  house  and  no  interest  or  estate  in  the 
land  on  which  it  stands,  the  house  is  a  chattel,  and  bis  home.  Cullers  v, 
James,  ^Q  Tex.,  494,  498  (1886).] 


CHAP,  m.]  CONTRACTS  AS  TO  REMOVAL.  *72 

inference  from  *the  subsequent  recognition  by  the  owner  [*72] 
of  the  land,  of  rights  which  can  result  only  from  its  existence, 
as  by  recognizing  and  treating  the  property  as  the  personal  prop- 
erty of  the  one  who  placed  it  upon  the  land.^ 

1  Morris  v.  French,   106  Mass.,   326    (1871);    Howard  v.  Fessenden,   14 
Allen,  129   (1867);  in  this  case  by  consent  of  A.,  who  was  the  tenant  for 
life  of  land,  B.  put  thereon  a  dwelling  house  and  other  buildings  for  his 
own  use.     On  A. 's  death,  B. 's  wife  became  a   tenant  in  common  of  the 
land.      B.    and   his   wife   thereafter   conveyed    their   interest   in   the   land, 
reserving   the   buildings,   to   C,   who   told  B.   the   buildings   might  remain 
there  till  B.  could  have  a  chance  to  dispose  of  or  remove  them.     The  other 
tenants  in  common,  by  certain  conversations,  recognized  the  buildings  as 
B. 's  personal  property.     B.  then  moved  from  the  dwelling,  and  nine  days 
after  sold  the  building  to  C.     Held,  in  a  proceeding  for  partition  by  one 
tenant  in  common  against  C,  that  a  jury,  from  these  facts,  were  justified 
in  finding  that  the  buildings  passed  to  C.  as  personal  property.     See,  also, 
Shell  V.  Haywood,  16  Penn.  St.,  523   (1851);  Hull  v.  Alexander,  26  Iowa, 
571   (1869);  Foy  v.  Eeddick,  31  Ind.,  414   (1869).     In  Shell  v.  Haywood, 
the  owner  of  a  flouring  mill  contracted  with  machinists  for  the  construc- 
tion of  a  steam  engine,  boilers,  etc.,  in  his  mill,   the  machinist   to  make 
and  put  up  a  complete  machine,  finding  the  materials,  and  to  be  paid  on 
its  completion.      The  balance  wheel  was  delivered,   but  not   set   up.     The 
boilers  were  laid  loose  on  the  foundation,  and  the  walls  and  building  to 
enclose  them  were  partially  completed  by  the  owner  of  the  mill  (who  was 
to  prepare  the   foundation  and  inclosure),   when   he  became   embarrassed, 
and  in  a  written  agreement  between  him  and  the  manufacturers,  it  was 
stated  that  the  boilers  and  machinery  attached  or  to  be  attached  thereto, 
were  the  property  of  the  manufacturers,  and  were  to  be  left  where  they 
were  three  months,  in  order  to  give  the  vendee  time  to  make  an  arrange- 
ment with  his  creditors,  and  if  that  could  not  be  done,  then  the  manufac- 
turers were  to  be  left  to  their  legal  remedy  for  materials  already  fur- 
nished, or  to  the  removal  thereof,  at  their  option.     Held,  that,  irrespective 
of  the  question  whether  attached  to  the  realty  or  not,  the  manufacturers 
had  the  right  to  remove  the  same  as  against  the  sheriff,  who  had  levied 
upon  and  sold  them  as  personal  property  on  a  ft.  fa.,  against  the  owner  of 
the  mill,  he  having  received  notice  of  the  claim  of  plaintiffs  before  making 
Buch  sale.    See  Tripp  v.  Armitage,  4  M.  &  W.,  687  (1839),  ante,  p.  *7.   The 
owner  of  the  land  may  also  douVjtlcss  estop  himself  from  alleging  that  the 
annexation  to  his  land  is  not  personalty.     Thus,  where  a  steam  saw-mill 
had  been  bought  twice  and  sold  once  by  the  plaintiff   (the  owner  of  the 
land  on  which  it  stood),  and  assessed  to  him  as  personal  property,  it  was 
held   that,  as  between   plaintiff,   who   had   bought   it   subject   to   a   chattel 
mortgage   (part  of  which  he  paid),  and  an  assignee  of  such  mortgage,  it 
•would  be  treated  as  personalty,  and  the  mortgage  enforced.     Dcnham   v. 
Sankcy,   38   Iowa,   269    (1874).     See,  also,   Sheldon  v.   Edwards,   35   N.   Y., 
279  (1866).    And  where,  under  such  cinumstauces,  the  plaintiff  purchased 

115 


*  i'2  THE  l.AW   OF  FIXTURES.  [CUAP.  HI. 

the  mill  and  the  lease  of  the  land  granted  by  him  to  the  owner  of  the 
mill,  siK'h  purchase  was  held  not  to  extinguish  the  lion  of  such  existing 
chattel  mortgage  upon  the  mill.    Denham  v.  Sankey  (supra). 

[If  an  intending  purchaser  of  lumber  which  forms  part  of  houses, 
inquires  of  the  landowner  as  to  the  right  of  the  seller  to  dispose  of  it, 
and  is  informed  that  the  seller  has  authority,  and  he  thereupon  purchases 
and  pays  for  it,  such  landowner  is  estopped  from  asserting  title  to  such 
lumber.  Powers  v.  Harris,  68  Ala.,  409,  411  (1880);  Harris  v.  Powers, 
57  Ala.,  139,  144  (1876).] 

[AVhere  the  plaintilf  claims  ownership  to  a  house  upon  his  land  through 
a  bill  of  sale,  thus  recognizing  it  as  the  personal  property  of  the  seller, 
he  can  not  claim  that  a  prior  verbal  sale  by  the  seller  was  invalid.  Apolo 
V.  Kauo,  7  Hawaii,  755,  756    (1889).] 

[A  conveyance  of  land  "except  the  mill  and  such  other  property  as 
said  G.  may  have  on  such  lot, ' '  recognizes  the  mill-house  as  distinct  from 
the  lot,  and  as  the  property  of  G.  Green  v.  Hammock,  13  Ky.  Law  K., 
145,  146    (1891).] 

[Where  a  life-tenant  permits  her  son  to  make  improvements,  and  ap- 
pears as  a  creditor  after  he  has  made  an  assignment,  she  is  estopped  from 
claiming  the  improvements  as  against  a  purchaser  under  a  decree  for  the 
settlement  of  the  assignment.  Watson  v.  Braun,  4  Ky,  Law  E.,  981 
(1883).] 

[Where  a  lot,  having  a  house  thereon  occupied  by  the  builder,  is  sold 
for  the  value  of  the  lot  alone,  it  is  inferred  that  the  grantor  never  de- 
signed to  claim  or  sell  the  house.  Green  Bay  Lumber  Co.  v.  Ireland,  77 
Iowa,  636    (1889).] 

[Where  a  grantee  of  land,  under  a  warranty  deed,  in  good  faith  began 
the  erection  of  a  factory  thereon,  and  the  rightful  owner  notified  him  of 
the  adverse  title,  but  said  that  he  wanted  the  factory  to  progress  and  the 
question  of  title  would  be  settled,  it  is  evident  that  the  boilers,  engines 
and  saw-mill  machinery  were  treated  as  distinct  from  the  land  by  both, 
especially  as  the  land  was  in  an  unexplored  wilderness  and  worth  but  two 
hundred  dollars,  while  the  machinery  was  worth  thirty-two  thousand  dol- 
lars, and  the  mill  was  erected  solely  on  account  of  the  timber  in  the  local- 
ity.    Brown  v.  Baldwin,   121   Mo.,   126    (1893).] 

[Where  mill-stones  are  placed  in  a  mill  under  an  agreement  with  the 
owner  that  they  are  to  remain  the  separate  property  of  the  person  placing 
them  therein,  and  a  subsequent  purchaser  of  the  mill  allows  the  tenant 
to  pay  such  person  for  the  use  of  the  mill-stones,  there  is  strong  ground 
for  the  inference  that  the  purchaser  recognized  the  right  of  such  person 
to  the  mill-stones.     Sullivan  v.  Jones,  14  S.  C,  362,  366   (1880).] 

[An  elevator  erected  in  another  state  upon  a  right  of  way  under  license 
from  the  railroad  company,  and  admitted  by  the  company  to  belong  to 
the  builder,  is  personal  property,  and  an  action  for  damages  for  injury 
thereto  caused  by  negligently  running  cars  into  it,  is  transitory.  Gregg 
v.  Union  Pac.  E 'y  Co.,  48  Mo.  App.,  494,  498   (1892).] 

[For  other  cases  illustrating  the  statement  made  in  the  text,  see  Nelson 

116 


CHAP,  m.]  CONTRACTS  AS  TO  REMOVAL.  *73 

Where  an  annexation  to  the  soil  of  another  is  made  after  an 
*entry  in  pursuance  of  an  order  of  the  court  for  that  [*73] 
purpose  in  proceedings  for  the  condemnation  of  the  land  for 
public  purposes,  the  owner  of  the  land,  upon  the  dismissal  of 
such  proceedings,  is  not  entitled  to  the  articles  so  annexed  as  a 
part  of  the  realty ,4he^  original  entry  and  annexation  being  right- 
ful.i 

If  an  intention  to  make  an  annexation  a  permanent  acces- 
cession  to  the  realty  is  manifest,  it  will  of  course  prevail.^ 

V,  Howison,  122  Ala.,  573,  578  (1898)  ;  Mantooth  v.  Burke,  35  Ark.,  540, 
546  (1880);  Brown  v.  Corbiu,  121  Ind.,  455,  457  (1889);  Commonwealth 
V.  Wesley,  166  Mass.,  248,  252  (1896)  ;  Handforth  v.  Jackson,  150  Mass., 
149,  153  (1889);  Batcheller  v.  Commercial  Assurance  Co.,  143  Mass.,  495 
(1887)  ;  Korbe  v.  Barbour,  130  Mass.,  255,  258  (1881)  ;  Green  v.  Gresham, 
21  Tex.  Civ.  App.,  601,  602  (1899)  ;  see,  also,  Omaha  B.  &  T.  R'y  Co.  v. 
Whitney,  99  N.  W.,  525  (Neb.,  1904)  ;  Conde  v.  Lee,  55  App.  Div.,  401 
(1900),  aff'd  171  N.  Y.,  662   (1902);   and,  ante,  p.  *46.] 

1  California  Pacific  E.  E.  Co.  v.  Armstrong,  46  Cal.,  85  (1873)  ;  s.  C,  1 
Cent.  Law  Jour.,  452.  See  (ante)  page  *58,  note.  The  stone  piers  of  a 
bridge  built  by  a  railway  company,  as  a  part  of  its  road,  on  lands  which 
it  has  acquired  the  right  of  using  for  its  road,  do  not,  though  firmly  im- 
bedded in  the  earth,  become  the  property  of  the  owner  of  the  land  as  a 
part  of  the  realty.  And  on  the  project  of  completing  the  road  being  aban- 
doned, the  company  may  remove  the  structures  as  personal  property. 
Wagner  v.  Cleveland,  etc.,  R.  R.  Co.,  22  Ohio  St.,  563  (1872).  [But  see 
Missouri  Pac.  E'y  Co.  v.  Bradbury,  79  S.  W.,  966  (Mo.  App.,  1904).] 
So,  as  to  the  materials  used  in  constructing  the  locks  of  a  canal,  after  the 
easement  over  the  land  has  been  detorniincd  by  the  abandonment  of  the 
enterprise.  Corwin  v.  Cowan,  12  Ohio  St.,  629  (1861).  Whether  the 
proceedings  of  a  railroad  corporation  to  condemn  land  for  right  of  way, 
were  sufficient  to  divest  the  owner's  title  or  not,  is  immaterial,  where 
after  the  proceedings,  such  as  they  were,  there  was  no  attempt  on  his 
part  to  prevent  the  execution  of  the  work,  and  for  a  period  of  several 
years  after  such  initiatory  steps  no  dissent  thereto  nor  claim  of  the  iron 
laid  down  was  made  by  such  landowner;  in  such  case  the  landowner  must 
be  assumed  to  have  assented  to  the  occupation  of  the  land  by  the  company, 
and  cannot,  as  against  a  vendee  of  the  company,  take  up  and  hold  the 
railroad  iron  which  had  previously  been  laid  down  and  spiked  to  sleepers 
by  said  company  on  said  land.  Dietrich  v.  Murdock,  42  Mo.,  279  (1868). 
See,  also,  Desloge  v.  Pearce,  38  Mo.,  600  (1866). 

2  Thus,  a  permanent  dwelling  built  in  the  usual  way  for  a  summer  house 
upon  the  land  of  another,  with  his  permission  to  occupy  during  his,  the 
builder's  lifetime,  and  set  upon  blocks  and  pillars,  and  so  occupied  for  a 
period  of  nearly  thirty  years,  being  evidently  intended  and  understood  as 

117 


*73  THE  LAW  OP  FIXTURES.  [CHAP.  III. 

ji  consideration  for  the  occupation  rent  free  of  the  soil,  is  a  fixture  and 
cannot  be  removed  by  the  tenant.  The  rule  is  thus  stated :  '  *  Where  the 
property  of  one  has  been  attached  to  the  freehold  of  another  for  a  tem- 
porary purpose,  with  an  express  or  implied  agreement  that  it  shall  not  be 
permanently  annexed  to  the  land,  it  may  be  removed  when  that  purpose  is 
satisfied."  Keid  v.  Kirk,  12  Kich.  Law,  54  (1859).  Though  the  rule  of 
law  laid  down  in  this  case  may  be  correct,  quaere  whether  the  same  in- 
ference as  to  intention  should  be  drawn  from  the  facts  stated. 

So  a  house  built  and  occupied  by  a  reversioner  with  the  assent  of  the 
tenant  for  life,  who  was  his  father,  is  presumed  to  be  intended  to  be  held 
as  attached  to,  and  part  of,  the  realty,  and  is  not  personalty;  and  a 
conveyance  as  realty  by  the  reversioner  or  his  assignee  in  insolvency,  will 
not  entitle  the  grantee  to  enter  and  occupy  the  house  as  against  the  tenant 
for  life.     Cooper  v.  Adams,  6  Cush.,  87   (1850). 

In  Wells  v.  Banister,  4  Mass.,  514  (1808),  it  was  held  that  where  a  son 
had  built  a  house  on  the  land  of  his  father  with  his  consent  and  under  the 
expectation  induced  by  his  father 's  words  that  he  would  devise  the  land 
to  the  son,  the  father  was  not  answerable  to  the  son 's  creditors  upon 
trustee  process  for  the  value  of  the  house.  This  case  also  contains  this 
statement:  "The  property  of  the  house  is  personal  property  of  the  son, 
he  having  no  estate  in  the  land;  and  the  most  that  can  be  made  of  the 
consent  of  the  father  to  build  upon  his  land,  is  a  right  to  occupy  the  land 
without  rent,"  etc.  This  dictum,  as  to  the  house  being  the  personal  prop- 
erty of  the  son,  does  not  appear  to  have  been  a  point  necessary  to  the 
decision  of  the  case,  and  has  been  since  disapproved  in  Leland  v.  Gassett, 
17  Vt.,  403,  411  (1845).  In  this  case  a  father  permitted  his  son  to  enter 
upon  a  farm  belonging  to  the  father,  clear,  improve,  and  carry  on  the 
same  for  his  own  use  and  benefit,  promising  him  that  he  would  at  some 
time  thereafter,  give  him  a  deed  of  the  same;  and  the  son  went  on,  and 
at  his  own  expense  erected  a  house  placed  upon  a  cellar  dug  and  stoned 
up  in  the  usual  way,  and  having  a  stack  of  chimneys  on  a  stone  founda- 
tion, and  a  barn  built  in  the  usual  manner,  such  buildings  being  erected 
with  a  view  to  their  being  permanent  and  remaining  on  the  land,  and 
being  occupied  by  the  son  as  a  part  of  the  estate  to  be  deeded  to  him 
thereafter,  and  after  carrying  on  the  farm  for  some  years  the  son  died 
and  the  father  refused  to  convey  to  his  administrator  or  to  permit  him  to 
occupy  the  buildings  or  remove  them.  Held,  that  the  buildings  became  a 
part  of  the  realty  and  could  not  be  recovered  in  trover,  the  plaintiff's 
remedy,  if  he  had  any,  being  in  chancery. 

This  case  does  not  seem  distinguishable  in  principle  from  the  cases  of 
annexations  by  parties  holding  land  under  contracts  for  a  deed,  to  be 
considered  hereafter,  the  annexations  in  such  cases  being  made  in  con- 
templation of  the  future  ownership  of  the  land,  and  of  course  intended  to 
be  permanent.     [See,  post,  p.  *272.] 

[See  Humphreys  v.  Newman,  51  Me.,  40,  50  (1863) ;  Lacustrine  Fer- 
tiUzer  Co.  v.  Lake  Guano  Co.,  82  N.  Y.,  476,  481  (1880);  Furrh  v. 
Winston,  66  Tex.,  521,  526  (1886)  ;  and  Fowler  v.  Fowler,  15  N.  Brunsw., 

118 


CHAP,  m.]  CONTRACTS  AS  TO  REMOVAL.  *74 

The  rule  before  laid  down  that  the  character  of  personal 
•property  and  the  right  of  removal  as  against  the  owner  [*74] 
of  the  soil,  may  be  preserved  by  agreement  between  the  parties, 
applies  also  to  trees,  plants  and  crops;  where  a  crop  has  been 
sown  upon  the  land  of  another  under  a  parol  license  and  agree- 

488,  491    (1875),  where  an  intention  was  shown  to  make  annexations  per- 
manent.] 

[The  fact  that  a  house  rests  upon  posts  does  not  give  the  mortgagor 
of  the  land  any  right  to  allow  the  builder  to  remove  it,  as  against  the 
mortgagee,  where  there  was  no  intention,  at  the  time  of  its  erection,  that 
the  builder  could  remove  it,  the  latter  retaining  ownership  merely  as 
security  until  paid  for  his  labor  and  materials.  Kowland  v.  Sworts,  17 
N.  Y.  Supp.,  399,  400   (1892).] 

[A  lean-to  attached  to  a  section-house  upon  railroad  land  occupied  by 
a  section  foreman  with  his  family  under  an  agreement  with  the  company, 
such  lean-to  having  been  built  for  a  kitchen  with  the  consent  of  the  com- 
pany, but  with  no  provision  for  removal,  can  not  be  removed.  Mueller  v. 
Chicago,  M.  &  St.  P.  R'y  Co.,  Ill  Wis.,  300   (1901).] 

[Where  street  railway  track  was  laid  upon  the  land  of  another  with  the 
understanding  that  the  company  would  buy  the  land,  and  the  extension  of 
the  road  was  for  the  purpose  of  inducing  the  purchase  of  lots  in  an 
addition  owned  by  the  company,  an  intention  is  shown  to  make  the  track 
permanent;  and,  upon  its  abandonment,  the  ties  and  rails  belong  to  the 
landowner.     Tudor  Iron  Works  v.   Hitt,  49   Mo.   App.,  472    (1892).] 

[A  building  erected  by  a  contractor  for  the  landowner,  can  not  be 
levied  upon  as  the  personal  property  of  the  contractor.  Sleeper  v.  Emery, 
59  N.  H.,  374,  375    (1879).] 

[A  contractor  building  a  house  became  insolvent,  and  defendants,  who 
had  been  engaged  Vjy  him  to  do  the  plumbing,  took  out  all  of  the  plumbing 
that  could  be  removed  without  substantial  injury  to  the  building.  Held, 
that  the  defendants  were  liable  to  the  owner  of  the  building.  Mu.oroe  v. 
Armstrong,  179  Mass.,  165    (1901).] 

[While  it  is  the  duty  and  right  of  a  husband  to  provide  a  suitable 
burial  place  for  his  deceased  wife,  yet,  when  the  body  has  been  buried 
in  the  lot  of  another  with  the  consent  of  the  husband  and  of  the  lot- 
owner,  the  body  becomes  a  part  of  the  ground,  and  the  husband  can  not 
remove  the  body  without  the  lot-ownor's  consent.  But,  it  seems,  the  hus- 
band might  remove  the  body  when  the  cemetery  ceases  to  be  used  as  a 
place  of  burial ;  and,  under  some  circumstances,  a  court  of  equity  might 
permit  the  removal  of  a  body,  as  where  it  was  understood  that  the  inter- 
ment was  temporary.     Pulsifor  v.   Douglass,  94  Mc.,  556,   558    (1901).] 

[Where  the  supervisor  of  a  plantation  agrees  to  satisfy  all  "real 
charges,"  buildings  erected  by  him  become  a  part  of  the  realty,  and  the 
supervisor  is  only  entitled  to  their  use  during  the  continuation  of  his 
contract.     Long  v.  Kee,  42  La.  Ann.,  899,  906   (1890).] 

119 


♦75  THE  LAW  OF  FIXTURES.  [CHAP,  III. 

niout  that  it  should  belong  to  him  who  sowed  it,  and  he  is  after- 
[*75]  wards  *oxpelled  from  the  land  and  the  crop  harvested  by 
the  owner  of  the  land,  he  may  maintain  an  action  therefor.^ 
See  post  Annexations  to  the  Freehold  of  the  Church. 

1  Harris  v.  Frink,  49  N.  Y.,  24  (1872),  The  possession  in  this  case  was 
under  a  parol  contract  to  purchase  void  by  the  Statute  of  Frauds,  and  the 
crop  was  put  in  with  the  vendor's  consent  and  the  assistance  of  his  agents 
who  were  paid  therefor  by  the  vendee  as  hired  men  by  the  day;  Smith  v. 
Jenks,  1  Den.,  580  (1845) ;  s.  c,  1  N.  Y.,  90.  See,  also.  King  v.  Wilcomb, 
7  Barb.,  263  (1849) ;  Oliver  v.  Vernon,  6  Mod.,  170  (1704) ;  s.  c.  Holt, 
332.     See   (post)   Emblements. 

[Where  nursery  stock  upon  mortgaged  land  has  been  purchased,  but 
not  removed,  and  the  mortgagee,  who  afterwards  acquires  a  sheriff's 
deed  to  the  land,  promises  the  purchaser  that  he  would  not  claim  the 
trees,  he  is  estopped  from  refusing  a  removal  of  the  trees.  Wallace  v. 
Dodd,  136  Cal.,  210   (1902).] 


120 


CHAPTER   IV.  [*76] 

OF  FIXTURES  AS  BETWEEN  LANDLORD  AND  TENANT. 

The  general  rule  of  law  being  as  hereinbefore  stated,  that 
whatever  is  fixed  to  the  soil  becomes  a  part  of  the  realty,  and 
subject  to  the  same  rules  of  law  as  the  soil  itself,  every  case  in 
which  there  exists  the  right  of  severing  and  removing  a  thing 
which  has  been  affixed  to  the  soil  of  another  is  considered  as 
an  exception  to  the  general  rule  above  stated;  though,  as  we 
shall  hereinafter  see,  in  some  relations  the  exceptions  have  be- 
come more  extensive  than  the  cases  governed  by  the  rule  itself. 

With  respect  to  these  exceptional  cases  the  article  annexed 
is  not  by  reason  of  its  annexation  considered  as  an  irrevocable 
gift  to  the  owner  of  the  soil  to  which  it  is  so  annexed ;  but 
within  certain  limits  as  to  the  time  within  which  it  must  be 
done,  etc.,  it  may  be  severed  from  the  realty  and  removed  against 
the  will  of  the  owner  of  the  soil. 

With  reference  to  the  nature  of  this  right  of  removal,  it  is 
obvious  that  it  differs  materially  from  that  by  virtue  of  which 
the  general  owner  of  the  soil,  in  right  of  his  general  dominion 
over  it  and  every  part  of  it,  severs  and  removes  property  an- 
nexed to  the  freehold,  which  was,  before  such  annexation,  and 
is  after  severance,  of  a  chattel  nature.  Such  general  owner  may 
exercise  the  right  of  severance  with  reference  to  any  kind  of  an- 
nexation uncontrolled  by  any  limitations  as  to  time,  manner,  etc., 
except  as  limited  by  the  general  police  power  of  the  State  and  the 
application  of  the  maxim,  ''.<??c  ^itcre  tuo,  ut  alicnum  non 
laedas."  But  with  reference  to  the  right  of  severing  and  remov- 
ing fixtures,  conferred  by  law  upon  one  not  the  owner  of  the  soil, 
but  who  has,  for  some  purpose  of  his  own,  more  or  less  tempor- 
ary, made  such  annexations,  such  is  not  the  case;  his  right  of 
•removal  arises  not  iiifrely  from  his  interest  in,  and  do-  [*77] 
minion  over,  the  land,  but  is  a  special  privilege  conffrred  by  the 
law  in  certain  cases  from  reasons  of  public  policy  upon  certain 

121 


*77  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

classes  of  persons,  in  dorog:ation  of  what  would  otherwise  be  the 
rights  of  the  owner  of  the  soil.  The  nature  of  this  right  of 
removal  has  been  explained  in  two  ways :  by  supposing  that  the 
chattel  nature  of  the  thing  is  preserved  after  its  annexation,  or, 
by  considering  that  the  thing  ceases  to  be  a  chattel  by  being 
affixed  to  the  land,  and  becomes  real  property,  but  reducible 
again  to  a  chattel  state  by  separation  from  the  realty.^  There 
is  some  confusion  and  looseness  of  expression  among  the  au- 
thorities on  this  subject,  occasioned  probably  by  the  fact  that 
in  some  relations  and  for  some  purposes,  as  in  favor  of  the  exe- 
cution creditors,  or  the  executors  of  a  tenant,  the  chattel  nature 
of  the  thing  is  not  lost  by  its  annexation.  For  many,  if  not 
most  purposes,  however,  during  the  continuance  of  the  annexa- 
tion, the  thing  is  treated  as  a  parcel  of  the  realty;  and  though 
it  is  in  the  power  of  the  party  making  the  annexation  to  reduce 
the  thing  again  to  the  state  of  goods  and  chattels  by  severance, 
yet  until  so  severed,  it  remains  a  part  of  the  realty ;  ^   and  this 

1  Ferard  Fixt.,   10. 

2  See,  generally,  Lee  v.  Risdon,  7  Taunt.,  188,  191  (1816);  Hallen  v. 
Eunder,  1  Cr.  M.  &  R.,  266,  275  (1834)  ;  Mackintosh  v.  Trotter,  3  M,  & 
W.,  184  (1838);  Minshall  v.  Lloyd,  2  M.  &  W.,  450  (1837);  Dumergue  v. 
Eumsey,  2  H.  &  C,  777,  790  (1863)  ;  Holland  v.  Hodgson,  L.  E.,  7  C.  P., 
328,  336  (1872);  s.  c,  26  L.  T.  (N.  S.),  709;  Boyd  v.  Shorrock,  L.  E.,  5 
Eq.,  78  (1867);  Barnett  v.  Lucas,  5  Ir.  E.  Com.  Law,  140  (1870);  Lee  v. 
Gaskell,  45  L.  J.  (Q.  B.  D.),  540  (1876) ;  Bliss  v.  Whitney,  9  Allen,  114 
(1864);  Eaddin  v.  Arnold,  116  Mass.,  270  (1874);  Guthrie  v.  Jones,  108 
Mass.,  191  (1871);  Preston  v.  Briggs,  16  Vt.,  129  (1844);  Prescott  v. 
Wells,  3  Nev.,  82  (1867).  [Hyatt  v.  Vineennes  Nat.  Bank,  113  U.  S., 
408  (1884);  Freeman  v.  Dawson,  110  U.  S.,  264,  270  (1883);  Commercial 
Bank  v.  Pritchard,  126  Cal.,  600;  San  Francisco  Breweries  v.  Schurtz,  104 
Cal.,  420,  427  (1894)  ;  First  Nat.  Bank  v.  Adam,  138  111.,  483,  498  (1891); 
Dobschuetz  v.  Holliday,  82  III.,  371,  374  (1876)  ;  Bauernschmidt  Co.  v. 
McColgan,  89  Md.,  135,  137  (1899) ;  Mclver  v.  Estabrook,  134  Mass.,  550, 
553  (1883);  Ex  parte  Makepeace,  31  N.  C,  91,  95  (1848);  Darrah  v. 
Baird,  101  Pa.  St.,  265,  273  (1882);  Sampson  v.  Camperdown  Mills,  64 
Fed.,  939,  942  (U.  S.  C.  C,  S.  C,  1894);  Orient  Ins.  Co.  v.  Parlin- 
Orendorff  Co.,  14  Tex.  Civ.  App.,  512  (1896);  Miller  v,  Muirhead  (1894), 
21  Sess.  Cas.,  4th  Ser.,  658,  660;  see,  also,  McNally  v.  Connolly,  70  Cal., 
3,  6  (1886);  Nordyke  v.  Hawkeye  Woolen  Co.,  53  Iowa,  521,  524  (1880); 
State  V.  Marshall,  4  Mo.  App.,  29,  33  (1877)  ;  Hilton  Lumber  Co.  v. 
Murray,  47  App.  Div.,  289,  293  (N.  Y.,  1900);  Steers  v.  Daniel,  4  Fed., 
587,  598  (U.  S.  C.  C,  Tenn.,  1880)  ;  Wylie  v.  Karner,  54  Wis.,  591,  597 
(1882);  Cowan  v.  Assessor  for  Midlothian  (1894),  21  Sess.  Cas.,  4th  Ser., 

122 


CHAP.  IV.]  LANDLORD  AND  TENANT.  *77 

812,  815.]  In  Minshall  v.  Lloyd,  supra,  Parke,  B.,  said:  "The  principle 
of  law  is  that  ' quicquid  solo  plantatur  solo  cedit.'  The  right  of  a  tenant 
is  only  to  remove  during  his  term  the  fixtures  he  may  have  put  up,  and 
so  to  make  them  cease  to  be  any  longer  fixtures.  That  right  of  the  tenant 
enables  the  sheriff  to  take  them  under  a  writ,  for  the  benefit  of  the 
tenant's  creditors.  I  assent  to  the  doctrine  laid  down  in  Coombs  v.  Beau- 
mant  [5  B.  &  Ad.,  72  (1833)];  and  Boydell  v.  McMichael  [1  C.  M.  &  E., 
266  (1834)],  that  such  fixtures  are  not  goods  and  chattels  within  the 
bankrupt  law,  though  they  are  goods  and  chattels  when  made  such  by  the 
tenant 's  severance,  or  for  the  benefit  of  execution  creditors. ' '  See  the 
subject  of  bankruptcy,  considered  further  on,  page  *333. 

Where  a  railway  company,  for  the  purpose  of  their  undertaking,  re- 
quired a  portion  of  the  premises  leased  to  the  plaintiff  for  a  term  of  99 
years,  on  which  there  was  an  iron  manufactory  containing  trade  fixtures, 
which  were  removable  by  the  tenant  during  his  term;  and  such  company 
was  required  by  the  plaintiff  under  the  92  Sec.  of  the  Lands  Clause  Con- 
solidation Act,  providing  that  no  party  shall  be  required  at  any  time  to 
sell  or  convey  to  the  promoters  of  the  undertaking  a  part  only  of  any 
house  or  other  building  or  manufactory,  if  such  party  be  willing  to  sell 
and  convey  the  whole  thereof;  and,  Sec.  80,  giving  to  any  person  having 
a  house,  building  or  manufactory,  a  right  to  require  such  company  to  take 
the  whole,  not  only  of  the  land,  but  the  house,  building  or  manufactory, 
it  was  held,  that  the  company  was  bound  to  take  and  pay  for  such  trade 
fixtures,  on  the  ground  that  they  were  a  parcel  of  the  realty,  the  exception 
in  favor  of  the  tenant's  trade  fixtures  only  existing  in  favor  of  the 
removal,  and  not  to  their  annexation  to  the  freehold.  Gibson  v.  Hammer- 
smith, etc.,  Kailway  Co.,  2  Drew.  &  Sm.,  603  (1862)  ;  s.  C,  9  Jur.  (N.  S.), 
221;  32  L.  J.  Ch.,  337;  11  W.  K.,  299;  8  L.  T.  (N.  S.),  43;  approved  in 
Cotter  V.  Metropolitan  Railway  Co.,  12  W.  R.,  1021  (1864);  s.  c,  10  L. 
T.  (N.  S.),  777.  This  subject  was  somewhat  considered  in  Ex  parte 
Lloyd  (or  Loyd),  3  Dea.  &  Ch.,  765,  779,  781  (1834);  s.  c,  1  Mont.  & 
Ayr.,  494;  3  L.  J.  (N.  S.),  Bank.,  108,  by  Erskine,  C.  J.,  who  said:  "But 
where  any  fixture  is  annexed  by  the  tenant,  it  does  not  necessarily  become 
a  part  of  the  freehold;  but  its  character  as  realty  or  personalty  depends 
upon  the  nature  of  the  fixture,  and  the  purpose  for  which  it  was  annexed." 
*  *  *  "The  right  of  the  tenant's  executor  to  such  [trade]  fixtures  at 
his  death,  and  the  right  of  the  sheriff  to  take  them  in  execution  under  a 
fi.  fa.  against  the  tenant 's  goods  and  chattels,  seems  to  me  to  confirm 
the  principle  adopted  in  Trappes  v.  Harter  [3  Tyr.,  603  (1833)],  that  in 
all  questions  between  the  landlord  and  tenant,  they  retain  during  the 
term  their  character  of  personalty,  an<l  do  not"  boconic  a  parcel  of  the 
realty,  until  the  tenant  shall  have  left  them  annexed  at  the  end  of  the 
term;  when,  according  to  Lord  Holt's  language  in  Poole's  case  [1  Salk., 
368  (1703)],  'they  become  a  gift  in  law  to  him  in  reversion,  and  are  not 
removable.'  "  See,  also.  Ex  parte  Belcher,  2  Mont.  &  Ayr.,  160,  167 
(18.35);  s.  c,  4  Dea.  &  Ch.,  703;  4  L.  J.  (N.  S.),  Bank.,  29;  Finney  v. 
Watkins,  13  Mo.,  291    (1850). 

123 


*78  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

[*78]  seems  to  apply  as  well  to  trade  fixtures  as  to  *other  fix- 
tures.^ A  distiiietioii  is,  however,  made  in  this  respect  between 
fixtures  and  furniture,  which,  though  fastened  to  the  walls  for 
[*79]  safety  and  convenience,  is  not  considered  as  annexed  *to 

It  does  not  seem,  however,  to  be  true  that  in  all  questions  between  land- 
lord and  tenant,  fixtures  retain  their  character  of  personalty  during  the 
term,  or  during  annexation,  e.  g.,  in  an  action  for  the  price  they  cannot  be 
treated  as  goods.  Lee  v.  Eisdon,  and  Hallen  v.  Kunder  (supra).  And 
generally  as  regards  the  remedy,  they  seem,  during  annexation,  to  be  con- 
sidered as  realty.  See  chapters  on  Bankruptcy,  Mortgagor  and  Mort- 
gagee, Eemedies,  etc.  (post).  The  subject  will  be  further  considered  in 
the  progress  of  the  work. 

[Fixtures,  so  long  as  they  remain  attached  to  the  realty,  are  not  goods 
and  chattels,  and  the  price  thereof  can  not  be  recovered  under  a  declara- 
tion for  goods  sold  and  delivered.  Donnelly  v.  Thieben,  9  111.  App.,  495, 
500  (1881).  The  right  given  to  tenants  to  remove  buildings  does  not 
make  such  buildings  mere  chattels.  Hilton  Lumber  Co.  v.  Murray,  47 
App.  Div.,  289,  293  (N.  Y.,  1900).  A  building  which  the  lessor  has  the 
option  to  take  at  the  expiration  of  the  lease,  is  a  chattel  real,  and  an 
easement  of  way  may  be  acquired  in  connection  therewith.  Newhoff  v. 
Mayo,  48  N.  J.  Eq.,  619,  623  (1891);  Mayo  v.  Newhoff,  47  N.  J.  Eq.,  31, 
35   (1890).] 

Where  the  plaintiff,  who  had  no  interest  in  the  freehold,  bought  from 
the  lessees  a  boiler  placed  by  them  in  the  mill  demised  to  them,  which 
boiler  while  so  annexed  was  hired  from  the  plaintiff  and  used  by  the 
defendant,  it  was  held  that  the  defendant,  having  hired  and  used  the 
boiler,  was  liable  in  an  action  to  recover  compensation  for  its  use;  and 
that  it  was  immaterial  whether  it  was  real  or  personal  property.  Kaddin 
V.  Kidder,   111  Mass.,  44    (1872). 

1  See  next  note  (supra).  See,  however,  Ex  parte  Goreley,  13  W.  E.,  60 
(1864);  s.  c,  11  L.  T.  (N.  S.),  319;  10  Jur.  (N.  S.),  1085;  34  L.  J. 
(N.  S.),  Bank.,  1.  In  this  case,  under  sec.  83  of  14  Geo.  3,  c.  78,  enact- 
ing that  on  the  request  of  any  person  interested  in  any  house  or  building 
insured,  or  on  the  suspicion  of  fraud,  the  insurance  office  shall  be  em- 
powered and  required  to  cause  the  moneys  to  be  expended  in  rebuilding, 
reinstating  or  repairing  such  house  or  building,  or  shall  take  security  that 
the  person  to  whom  they  shall  pay  the  moneys,  shall  so  expend  them,  where 
a  demise  was  accompanied  by  a  covenant  not  to  remove  the  fixtures,  trade 
or  otherwise,  at  the  expiration  of  the  tenancy,  and  trade  fixtures  were 
added  by  the  lessee  and  were  insured  by  him.  Held,  that  the  insurance 
money  on  the  fixtures  did  not  fall  within  the  operation  of  said  sec.  83. 
The  Lord  Chancellor  said  that,  "the  question  then  was,  when  the  fire  took 
place  were  the  fixtures,  whir-h  were  trade  fixtures  added  by  the  lessee, 
a  part  of  the  building  within  the  meaning  of  the  section?"  This,  he 
thought,  ought  to  be  determined  by  the  answer  to  another  question:  were 

124 


CHAP,  IV.  J  LANDLORD  AND  TENANT.  *80 

the  realty,  and  hence  remains  subject  to  the  rules  governing 
personalty.2 

The  most  ordinary  instances  of  the  exercise  of  this  right  of 
*removal  occur  between  parties  sustaining  to  each  other  [*80] 

the  fixtures  at  the  time  in  such  a  condition,  that  if  the  landlord  had  made 
a  conveyance  by  the  description  of  all  that  house  and  building  with  its 
rights,  members,  and  appurtenances,  the  fi:stures  would  pass?  The  fix- 
tures were  trade  fixtures,  and,  but  for  the  covenant,  would  have  been 
removable  at  the  time  of  the  fire.  Whatever  right  the  lessor  had  to  them, 
was  derived  under  the  personal  covenant  of  his  lessee,  and  did  not  spring 
out  of  his  relation  as  landlord  to  his  tenant;  it  was  a  personal,  and  not 
a  real  right,  contingent  and  future,  and  not  present  or  vested;  he  thought 
that  if  a  conveyance  had  been  made  in  the  terms  he  had  above  mentioned, 
the  fixtures  would  not  have  passed.  If  that  were  so,  the  insurance  money 
on  the  fixtures  did  not  fall  within  the  operation  of  the  83d  section  of  the 
14  Geo.  3,  c.  78,  and  those  moneys  were,  therefore,  properly  payable  to 
the  assignees,  and  not  to  the  lessor  or  the  mortgagee.  He  would  be  under- 
stood as  confining  his  judgment  to  the  question  before  him,  viz.:  whether 
the  fixtures  were  so  blended  with  the  freehold  as  that  the  insurance  moneys 
would  fall  within  the  83d  section  or  not,  and  did  not  intend  in  any  way 
to  interfere  with  the  decision  of  the  House  of  Lords,  in  Holroyd  v.  Mar- 
shall, 11  W.  R.,  171.  He  was  of  opinion  that  the  fixtures  were,  at  the 
time  of  the  fire,  not  an  integral  part  of  the  building,  and  the  money  not 
within  the  application  of  the  section.  See,  also,  Cook  v.  Champlain 
Transp'n  Co.,  1  Den.,  102  (1845).  See,  however.  Mayor,  etc.,  of  N.  Y.  v. 
Hamilton  Fire  Ins.  Co.,  10  Bosw.,  537  (1863);  same  v.  Brooklyn  Fire  Ins. 
Co.,  41  Barb.,  231  (1864)  ;  same  v.  Exchange  Fire  Ins.  Co.,  9  Bosw.,  424 
(1862);  s.  c,  3  Abb.  Ct.  App.,  Dec,  261  (1867),  cited  in  a  subsequent 
portion  of  this  volume. 

2  Guthrie  v,  .Jones,  108  Mass.,  191  (1871).  In  this  case,  a  glass  case,  a 
case  of  drawers  and  a  mirror  about  six  feet  long  by  two  feet  wide,  bought 
by  the  tenant  of  an  eating  house  where  intoxicating  liquors  were  sold,  to 
use  in  his  business,  and  screwed  or  nailed  by  him  to  the  walla,  and  gas 
fixtures  (so  called),  bought  by  liim  for  the  same  purpose,  and  screwed  by 
him  upon  the  gas  pipes  fastened  to  the  ceiling,  though  fastened  to  the 
walls,  were  considered  as  not  annexed  to  the  realty  so  as  to  become  a  part 
of  it,  but  to  be  in  their  nature  furniture,  and  hence  personalty,  for  which, 
after  demand  and  refusal,  trover  would  lie  by  tlie  tenant  against  the  land- 
lord, though  still  attached  to  the  walls;  but  an  oyster  and  trench  counter, 
and  a  bar,  nailed  to  the  floor,  were  considered  as  realty  so  long  as  an- 
nexed. S.  P.,  and  probably  s.  r.,  iinm.  MfLcod  v.  .Tones,  3  Mass.  Dig., 
35.3.     [See,  post,  p.  ♦43G.     Fore  v.  Ilibbard,  63  Ala.,  410,  412   (1879).] 

[The  character  of  an  article  as  furniture  is  not  changed  by  the  fact 
that,  by  reason  of  its  size,  it  was  not  necessary  to  paint  and  finish  the 
wall  behind  it  which  it  concealed.  Kirnb.ill  v.  Grand  Lodge,  131  Mass., 
59,  63   (1881).] 

125 


•81  THE  LAW  OF  FIXTURES.  .[CHAP^  IV. 

>tlie  relation  of  landlord  and  tenant,  which  will  form  the  subject 
of  this  chapter.  The  subject  may  be  conveniently  considered 
with  reference  (1)  to  Trade  Fixtures,  and  Fixtures  erected  for 
Trade  Purposes,  combined  with  other  objects;  (2)  Agricultural 
Fixtures;  (3)  Fixtures  set  up  for  purposes  of  Ornament  or 
Convenience,  or  for  Domestic  Use;  (4)  When  the  Right  of 
Removal  must  be  exercised;  (5)  Of  the  Right  of  Removal  as 
affected  by  Special  Agreements  in  relation  thereto  between  Land- 
lord and  Tenant. 

I.    Trade  Fixtures,  and  Mixed  Cases. 

As  shown  in  a  preceding  chapter,  with  reference  to  the  legal 
effect  of  annexations  upon  the  land  of  another  with  his  con- 
sent, the  agreement  of  the  parties  in  relation  thereto  may,  and 
often  does,  exercise  a  controlling  influence  in  determining 
whether  an  annexation  may  be  severed  and  removed  by  the 
party  annexing  it.  It  is  proposed,  however,  in  this  connection, 
first,  to  consider  the  subject  independently  of  any  special  agree- 
ment between  the  parties  relative  to  the  right  of  removing  fix- 
[*81]  *tures,  (which  will  be  hereinafter  considered),  and  with 
reference  only  to  the  ordinary  relation  of  landlord  and  tenant, 
unaffected  by  any  special  terms  in  the  demise  controlling  the 
general  rights  of  the  tenant  in  relation  thereto. 

The  general  maxim  of  the  law  in  respect  to  annexations 
made  by  a  tenant  to  the  soil  of  his  landlord  during  the  exist- 
ence of  his  term,  is,  as  has  been  already  stated,  quicqiiid  plan- 
tatur  solo,  solo  cedit;  and  that  anything  so  affixed  by  a  tenant 
cannot  be  afterwards  severed  and  removed  by  him,  either  dur- 
ing the  continuance  or  at  the  end  of  his  term,  without  the 
permission  of  his  landlord,  without  his  incurring  the  penalty  of 
waste.^     Although,  however,  the  rule  is  as  above  stated,  it  has 

1  See  Co.  Lit.,  53  a;  Elwes  v.  Maw,  3  East,  38  (1802),  and  cases  there 
cited;  Gibson  v.  Hammersmith,  etc.,  Railway  Co.,  2  Drew  &  Sm.,  608 
(1862).  Waste  is  thus  defined  in  McCuIlough  v.  Irvine,  13  Penn.  St.,  440 
(1850):  "Waste  is  spoil  or  destruction  committed  in  houses  or  other 
corporeal  hereditaments  to  the  injury  of  one  who  has  the  remainder  or 
reversion  in  fee."  "Any  act  which  does  permanent  injury  to  the  free- 
hold or  inheritance  is  waste."  As  the  destruction  of  a  dovecote  by  a 
tenant.    Kimpton  v.  Eve,  2  Ves.  &  B.,  349  (1813)  j  but  removing  presses 

126 


CHAP.   IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *82 

long  been  subject  to  numerous  exceptions,  and  its  great  hard- 
ship and  injustice  to  tenants  very  much  mitigated;  so  that  at 
the  present  day  the  exceptions  have  become,  with  the  limita- 
tions to  be  hereinafter  noticed,  perhaps  more  extensive  than 
the  rule  itself.  The  progress  and  gro-vvlh  in  number  and  im- 
portance of  these  exceptions  afiford  a  very  instructive  example 
of  the  elastic  and  accommodating  nature  of  the  English  com- 
mon law  and  its  adaptation  to  the  ever  varying  necessities  and 
demands  of  society.  The  rule  appears  originally  to  have  been 
enforced  with  very  little  regard  to  the  object  of  the  annexation 
or  the  real  intention  of  the  party  in  making  it.  And  this  was 
♦not  repugnant  to  the  then  received  notions  respecting  the  [*82] 
relative  importance  of  the  land  and  the  thing  annexed,  for  the 
land  was  then  regarded  as  pre-eminently  the  principal,  and  com- 
merce and  the  arts  had  not  yet  conferred  upon  personal  prop- 
erty the  importance  which  it  now  possesses.  There  seems  also 
during  the  period  covered  by  the  early  reports  to  have  been  no 
such  recognized,  substantive,  legal  term  as  fixtures,  which  is 
comparatively  a  modern  word; 2    but  the  subject  was  viewed 

eo  nomine  by  a  tenant,  is  not  waste  unless  they  are  fixed  to  the  freehold. 
Kimpton  v.  Eve    (supra). 

So,  if  a  lessee  pull  down  a  brew  house  and  build  tenements  on  its  site, 
it  is  waste,  even  if  the  rent  is  thereby  improved.  Cole  v.  Forth,  1  Mod.,  95 
(1682);  s.  c,  styled,  however.  Cole  v.  Greene,  1  Lev.,  309;  Greene  v.  Cole, 
2  Saund.,  252.  So,  if  a  termor  destroy  a  wall  or  partition  within  a  house 
to  unite  the  chambers:  10  Hen.  7,  2b,  pi.  3  (1494);  or  remove  a  door 
and  cheek  posts  of  a  house  added  by  him  during  his  tenancy:  Cooke's  case, 
Moore,  177  (1582)  ;  or  pull  down  a  house  erected  by  him  during  his  term: 
17  Edw.,  2,  518   (1324). 

[It  is  waste  for  a  tenant  to  remove  the  elevator,  heating-plant,  plate 
glass,  staircase  and  wainscoting  from  a  building  erected  by  him;  and  an 
incoming  tenant  can  have  such  removal  enjoined.  Palmer  v.  Young,  108 
111.  App.,  252,  257    (1903).] 

[Where  the  removal  of  an  addition  erected  by  a  tenant  would  leave 
one  end  of  the  main  building  exposed  and  in  need  of  repairs,  it  is  waste. 
Holmes  v.  Standard  Pub.  Co.,  55  Atl.,  1107   (N.  J.  Ch.,  1903).] 

[Sec,  also,  Laidlaw  v.  Taylor,  2  Nova  S.  L.  K.,  155  (1881),  in  regard  to 
glass  in  door.] 

2  In  Sheen  v.  Rickie,  5  M.  &  W.,  175,  182  (1839),  Parke,  B.,  says:  "It 
is  a  very  modern  word."  And  as  a  substantive  term,  the  author  has 
never  met  with  it  in  the  Year  Books  or  the  old  reports,  abridgements  or 
digests,  unless  placed  there  by  some  modern  hand  in  the  process  of  re- 
vision.    We  find,   however,   the  adjuncts  "fixe"  and  "annexe"  used  in 

127 


•83  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

almost  wholly  from  the  standpoint  of  the  landlord,  and  with 
reference  to  his  remedies  for  waste  committed  by  the  tenant. 
In  process  of  time,  however,  owing,  doubtless,  as  well  to  the 
hardship  and  injustice  of  the  old  rule,  as  to  principles  of  public 
policy  growing  out  of  the  increasing  importance  of  trade  and 
personal  propertj^,  certain  exceptions  before  alluded  to  were 
engrafted  upon  the  old  rule,  and  have  since  been  amplified  and 
firmly  settled  by  a  series  of  judicial  decisions  greatly  mitigat- 
ing the  rigor  of  the  old  rule  so  far  as  it  concerned  tenants. 

By  the  common  law,  an  action  of  waste  lay  in  three  cases 
only:  tenancy  by  the  curtesy,  tenancy  in  dower,  and  guard- 
ianship in  chivalry;  which  estates  being  created  by  act  of 
the  law,  were  protected  by  the  law  from  abuse  by  the  tenants ;  ^ 
but  prohibition  of  waste  did  not  lie  at  common  law  against 
[*83]  *tenants  for  life  or  years,  because  they  came  in  by  their 
own  act,  and  it  might  have  been  provided  that  no  waste  should 
be  done.'*  This  doctrine  being  found  very  inconvenient,  as  such 
tenants  by  taking  advantage  of  the  ignorance  of  their  land- 
lords might  commit  waste  with  impunity,  the  defect  was  sought 
to  be  remedied  by  the  Statute  of  Marlbridge,  52  Hen.  3,  c. 
23  (anno  1267),  which  provided  that  "fermors,  during  their 
terms,  shall  not  make  waste,  sale,  nor  exile  of  house,  woods, 
and  men,  nor  of  anything  belonging  to  the  tenements  that 
they  have  to  ferm,  without  special  license  had  by  writing  of 

the  Year  Books  to  express  the  relation  a  thing  sustains  to  the  frank 
tenement  or  inheritance.  See  20  Hen.  7,  13,  b,  pi.  24  (1504)  ;  21  Hen.  7, 
26  (1.506);  and  in  Wiltshear  v.  Cottrell,  1  Ell.  &  Bl.,  674,  682  (1853), 
Lord  Campbell  said :  "  I  do  not  know  that  '  fixture '  is  a  legal  term  at  all ; 
it  is  not  in  Termes  de  la  Ley. ' ' 

The  ancient  rules  of  law  on  the  subject  as  connected  with  the  subjects 
of  waste,  executors  and  administrators,  may  be  found  under  those  heads; 
but  the  term  "fixtures"  as  a  substantive  term  in  the  law  regarding  the 
subject  from  the  tenant 's  standpoint,  does  not  seem  to  have  been  then 
used.     See,  also,  Brown  Fixt.  Introduction,  §§  4,  5. 

3  Co.  Lit.,  53  a,  et  seq.;  2  Inst.,  145,  299;  Doct.  &  St.  Dial.  2,  ch.  1,  2; 
2  Saund.,  252,  n.  7 ;  1  Greenl.  Cru.  Dig.,  Tit.,  3,  ch.  2,  §  25,  et  seq.,  p.  119. 
Some  have  thought,  that  at  common  law,  waste  did  not  lie  against  tenant 
by  the  curtesy.  2  Inst.,  145,  301;  Br.  Abr.,  Waste,  88.  [See,  post,  p. 
*390.] 

4  Co.  Lit.,  53  b;  2  Inst.,  299;  Doct.  &  St.  Dial.  2,  ch.  1,  2;  1  Greenl. 
Cm.  Dig.,  Tit.  3,  ch.  2,  §  25,  et  seq.,  p.  119,     [S^ee,  i)ost,  p.  *390.] 

128 


CB.AF.   IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *84 

covenant,  making  mention  that  they  may  do  it;  which  thing 
if  they  do,  and  thereof  be  convict,  they  shall  yield  full  damage, 
and  shall  be  punished  by  amerciament  grievously."  The 
Statute  of  Gloucester,  6  Edw.  1,  c.  5  {anno  1278),  increased 
the  punishment  by  enacting  that  he  who  should  be  attainted 
of  waste  should  lose  the  place  wasted,  and  should  make  recom- 
pense of  thrice  so  much  as  the  waste  should  be  taxed  at.'^  By 
a  liberal  construction,  the  last  mentioned  statute  was  held  to 
apply  to  tenants  from  year  to  year,  and  tenants  for  part  of  a 
year.6  It  thus  appears  that  though  in  general  the  maxim 
was  quicquid  plantatur,  etc.,  yet,  at  the  common  law,  before 
the  statutes  above,  referred  to,  though  it  seems  to  have  been 
regarded  as  against  conscience  for  a  tenant  for  life  or  years  to 
injure  the  inheritance,"  there  was  no  remedy  therefor,  unless 
*it  was  stipulated  that  no  waste  should  be  committed.  [*84] 
After  these  statutes,  however,  and  in  consequence  thereof,  ques- 
tions respecting  the  right  of  tenants  for  life  or  years  to  remove 
things  annexed  by  them  to  the  soil  of  their  landlord  during 
their  terms,  began  to  furnish  questions  for  judicial  determina- 
tion. 

The  exception  in  favor  of  the  tenant,  said  by  some  to  have 
been  first  established,  relates  to  fixtures  erected  by  a  tenant 
upon  the  demised  premises  for  the  purpose  of  carrying  on  his 
trade  and  manufacture. 

The  case  usually  referred  to  in  this  connection,  as  the  ear- 
liest authority  on  the  subject,  is  reported  in  the  Year  Book, 

5  This  statute  is  translated  thus:  "It  is  provided,  also,  that  a  man  from 
henceforth  shall  have  a  writ  of  waste  in  the  chancery  against  him  that 
holdeth  by  law  of  England,  or  otherwise  for  term  of  life,  or  for  term  of 
years,  or  a  woman  in  dower.  (2)  And  he  which  shall  be  attainted  of 
waste  shall  lose  the  thing  [la  chose]  that  he  hath  wasted,  and,  moreover, 
shall  recompense  thrice  so  much  as  the  waste  shall  be  taxed  at.  (3)  And 
for  waste  made  in  the  time  of  wardship,  it  shall  be  done  as  is  contained  in 
the  Great  Charter.  (4)  And  where  it  is  contained  in  the  Great  Charter, 
that  he  which  did  waste  during  the  custody,  shall  leese  the  wardship, 
(5)  it  is  agrood  that  he  shall  recompense  the  heir  his  damages  for  the 
■waste,  if  so  be  that  the  wardsliij)  lost  do  not  amount  to  the  value  of  the 
damages  before  the  age  of  the  heir  of  the  same  wardship. ' '  [See  post,  p. 
•391.] 

oCo.  Lit.,  54  b;   2  Inst.,  302;   Plowd.,  467. 

7  See  Doct.  &  St.  Dial.  2,  ch.  1. 

9  129 


♦  jjl5  THE  LAW  OF  FIXTURES,  [CHAP,   IV. 

42  Edw.  3,  p.  6,  pi.  19  (1368),  where  the  right  of  a  tenant 
for  years  to  remove  a  furnace  erected  by  him  during  his  term, 
was  doubted  and  adjourned.  The  furnace  in  this  case  seems, 
from  the  remarks  upon  the  case  in  a  subsequent  case  reported 
in  the  Year  Book,  21  Hen.  7,  26  b,  to  have  been  fixed  to  the 
walls  of  the  house. 

In  a  case  reported  in  20  Hen.  7,  13  b,  pi.  24  (1504),  where 
it  was  held  that  a  furnace  erected  by  the  ancestor  and  an- 
nexed to  the  frank  tenement  with  mortar  was  parcel  of  the 
realty,  and  could  not  lawfully  be  removed  by  his  executors  as 
against  the  heir,  we  find  in  the  course  of  the  opinion  of  the 
court   (Rede,  C.  J.,  Fisher  and  Kingsmil,  JJ.),  the  following 
statement:     "And  if  a  lessee  for  years  makes  such  a  furnace 
for  his  advantage,^  or  a  dyer  makes  his  vats  and  vessels  for 
carrying  on  his  occupation^  during  the  term,  he  may  remove 
them;    but  if  he  permit  them  to  remain  fixed  to  the  earth 
after  the  end  of  his  term,  then  they  belong  to  the  lessor ;  and 
so  of  a  baker.     And  it  is  no  waste  to  remove  such  things  dur- 
ing the  term,  per  Ascuns."'^'^     At  the  end  of  the  case  it  is 
[*85]   *stated  that  in  42  Edw.  3,  it  was  doubted  whether  this 
was  waste  or  not.    This  case  is  usually  cited  as  the  first  in  terms 
recognizing  the  right  of  a  tenant  to  remove  fixtures;    and  it  is 
also  cited  as  an  authority  for  the  early  existence  of  the  excep- 
tion in  favor  of  trade  fixtures,  because  the  privilege,  which  is 
there  said  to  belong  to  the  lessee,  is  admitted  in  respect  of 


8  ' '  'pur  son  avantage. ' ' 

9  ' '  py,r  occupier  son  occupation. ' ' 

10  "Per  Ascuns"  it  seems  should  be  translated  "according  to  some," 
or  "in  the  opinion  of  some."  There  has,  however,  been  some  difference 
of  opinion  as  to  the  true  meaning  of  the  expression.  In  Elwes  v.  Maw, 
3  East,  38  (1802),  it  was  translated  by  the  counsel  thus:  "It  is  no 
•waste  to  remove  such  things  within  the  term  by  any."  Lord  Ellen- 
borough  in  the  same  case  translates  it:  "It  is  not  waste  to  remove  such 
things  within  the  term  by  some."  Both  of  these  translations  leave  it 
doubtful  whether  the  last  two  words  of  the  sentence  do  not  refer  to 
tenants.  The  original  reads,  and  is  punctuated  thus:  " Et  n'est  ascun 
waste  de  renmer  tiels  cJioses  deins  le  terme,  per  Ascuns."  A  proper  re- 
gard for  correct  usage  seems  to  render  it  the  preferable  opinion  that  the 
words  "per  Ascuns,"  refer  to  the  word  judges,  as  understood  though  not 
expressed,  and  it  is  so  understood  by  Messrs.  Ferard  (Ferard  Fixt.,  24, 
note  b),  and  Brown   (Brown  Fixt.,  §  46),  in  their  works  on  fixtures. 

130 


CHAP.  rV,]  TRADE  FIXTURES,  AND  MIXED  CASES.  *85 

trade  only;  and  is  to  be  understood  as  a  right  arising  solely 
out  of  the  principle  of  protecting  commerce  and  manufac- 
tures. Whether  the  dictum  above  quoted  is  or  is  not  prop- 
erly cited  as  an  authority  for  so  early  an  existence  of  the  ex- 
ception in  favor  of  trade  fixtures,  about  which  some  difference 
of  opinion  has  hitherto  existed,  is  now  practically  a  matter  of 
small  consequence,  as  the  exception  itself  has  long  been  firmly 
established;  but  as  it  may  prove  a  matter  of  interest  to  the 
student  of  this  branch  of  the  law,  we  quote  in  the  note  below 
the  observations  of  j\Ir.  Ferard  and  others  on  the  subject  in 
question.^ 

1  Ferard  Fixt.,  23.  '  *  This  case  is  generally  adduced  as  the  first  which 
in  terms  recognizes  the  right  of  a  tenant  to  remove  fixtures.  It  is  quoted, 
moreover,  as  the  great  authority  for  the  prevalence  of  a  rule,  in  very  early 
times,  in  favor  of  trade  fixtures.  For  it  is  insisted,  that  the  privilege 
which  is  there  said  to  belong  to  the  lessee,  is  admitted  in  respect  of 
articles  of  trade  only,  and  is  to  be  understood  as  a  right  arising  solely  out 
of  the  principle  of  protecting  commerce  and  manufactures.  The  expres- 
sion in  the  original  which  has  given  rise  to  the  supposition,  is  'pour 
occupier  son  occupation' ;  and  it  has  been  imagined,  that  the  instances  of 
the  dyer's  vessels  arc  intended,  not  merely  to  signify  additions  made  by  a 
tenant  for  his  common  domestic  accommodation,  but  to  indicate  fixtures 
put  up  by  him  expressly  in  relation  to  the  trade  which  he  is  carrying  on 
upon  the  premises. 

"It  may,  however,  be  doubted  if  this  is  a  fair  inference  from  the  case 
cited.  For,  in  the  first  place,  it  deserves  to  be  mentioned,  that  in  another 
report,  (o)  or  rather  abstract  of  the  case  in  the  Year  Book,  20  Hen. 
7,  which  was  published  at  a  subsequent,  but  very  early  period,  the 
passage  upon  which  the  supposition  in  question  mainly  proceeds  is  par- 
ticularly introduced,  but  the  expression  'pour  occupier  son  occupation' 
is  left  out.  If  this  circumstance  had  been  suggested  to  the  courts  in  the 
discussion  of  the  subsequent  cases,  it  would  probably  have  been  thought 
to  merit  attention,  as  tending  to  show  that  the  rule  laiil  down  by  the 
judges  in  the  time  of  Henry  the  Seventh  was  not  universally  considered 
to  have  been  founded  on  an  exception  arising  solely  out  of  trade.  And 
the   inference   that   trading  fixtures  were   not   particularly   and   exclusively 


(a)  "It  is  a  book  printed  A.  1).  KJH,  entitled,  'Un  Abridgment  de 
touts  les  Ans  del  Uoij  Ifeiirie  le  Sept,'  and  the  jxisition  in  question  is  thus 
expressed:  'and  if  lessee  for  years  makes  any  such  furnace  for  his 
pleasure,  or  a  dyer  makes  his  vats  and  vessels,  he  may  remove  them  during 
the  term,'  etc.,  'and  so  of  a  baker,  and  some,  srvib.,  that  it  is  not  waste 
to  remove  such  things  within  the  term,  but  this  is  contrary  to  the  opinions 
aforesaid, '  etc. ' ' 

131 


♦85  THE  KiVW  OF  FIXTURES.  XCHAP.  IV. 

iutomlcd  by  the  judges  iu  this  case,  will  more  closely  appear  from  the 
remark  which  follows  in  the  report,  viz.:  that  in  42  Ed.  III.,  it  was 
doubted  whether  this  was  waste  or  not.  Now,  on  referring  to  the  case  in 
42  Ed.  III.,  p.  G,  pi.  19,  it  will  appear  that  no  allusion  whatever  is  made 
to  an  exception  iu  favor  of  trade,  neither  is  it  mentioned  or  implied  that 
the  furnace  there  in  dispute  was  erected  for  a  trading  purpose.  Again, 
in  the  same  sentence  in  which  the  dyer's  vat  is  mentioned,  and  immediately 
before  it,  is  put  the  instance  of  a  furnace  erected  by  a  lessee,  and  this  is 
said  to  be  removable  like  the  vat.  And  so  far  from  its  being  intimated 
that  the  furnace  is  connected  with  trade,  it  is,  on  the  contrary,  described 
as  put  up  for  the  convenience  of  the  lessee,  'pour  son  avantage,'  or  (as 
the  abridgement  has  it)  'pour  so7i  pleasure'  (a).  But  further,  if  this 
principle  of  allowing  an  exemption  on  the  ground  of  trade  had  been 
clearly  recognized  in  the  case  in  question,  it  might  be  expected  that  it 
would  have  been  applied  to  the  solution  of  subsequent  eases.  But  the 
contrary  is  the  fact;  and  all  the  ancient  cases  which  follow  the  decision 
of  20  Hen.  VII.,  are  found  to  proceed  upon  a  distinction  depending  alto- 
gether upon  the  mode  of  annexation.  Thus,  in  a  case  which  occurred 
immediately  afterwards,  and  before  the  same  judges,  (fc)  it  was  laid 
down  by  the  court,  that  if  a  lessee  makes  an  erection,  as  a  furnace  or 
post,  etc.,  and  fixes  it  to  the  soil,  or  to  the  middle  of  the  house  only,  and 
not  to  the  walls,  he  may  take  it  away.  Nothing  is  said  in  this  case  of  a 
distinction  in  respect  of  trade;  on  the  contrary,  Kingsmil,  J.,  apparently 
in  allusion  to  the  particular  instances  of  vats  in  a  brew  house  or  dye 
house,  relies  solely  on  their  construction  and  annexation;  and  says  the 
removal  of  such  things  would  not  be  waste,  because  the  house  would  not  be 
impaired  by  it.  So,  lastly,  in  the  cases  which  followed  some  time  after  those 
in  the  Year  Books,  there  is  no  recognition  whatever  of  any  peculiar  privi- 
lege in  regard  to  trade.  For  Cook's  case  (c),  (24  Eliz.),  is  wholly  silent 
upon  it.  And  in  a  case  reported  in  Owen,  70,  and  Cro.  Eliz.,  374  (d), 
(which  respected  the  power  of  a  sheriff  to  seize  a  furnace  under  an  execu- 
tion against  a  termor),  the  article  is  expressly  stated  to  have  been  erected 
for  the  use  of  a  dyer;  and  the  court,  adverting  to  the  right  of  the  termor 
himself  in  such  a  case,  determine  it  by  the  circumstance  of  the  article 
being  fixed  to  the  walls,  and  not  to  the  middle  of  the  house.  On  this 
particular  ground  they  consider  that  the  furnace  would  not  be  removable; 
and  the  principle  of  an  exemption  on  the  ground  of  trade  is  altogether 
unnoticed   (e). 


(a)  And  see  8  Hen.  VIT.,  12. 

(b)  21  Hen.  VII.,  26  b,  pi.  4;  and  see  Bro.  Abr.  tit.  Chattels,  pi.  7,  11. 

(c)  Moore,  177. 

(d)  Day  v.  Austin  and  Bisbitch,  37  Eliz.,  and  see  1  Roll.  Ab.,  891, 
pi.  50. 

(e)  In  the  report  of  this  case,  as  cited  in  Went.  Off.  of  Ex.,  p.  61,  it  is 
said  that  the  jury  found  that  by  the  custom  of  Kent,  the  lessee  might  re- 
move such  articles. 

132 


CHAP.   IV,]  TRADE  FIXTURES,  AND  MIXED  CASES,  *86 

*Poole's  Case/  decided  before  Holt,  C.  J.,  at  nisi  prius,[*S6] 
in  Middlesex,  in  the  year  1703,  seems  to  have  been  the  first  case 
that  put  the  question  upon  a  clear  and  satisfactory  basis,  and 
*since  that  decision  the  right  of  the  tenant  during  the  [*87] 
term  to  remove  his  trade  fixtures,  has  been  often  and  uniformly 
recognized  as  a  settled  rule  of  law.-  This  was  a  case  where  a 
tenant  *for  years  had  made  an  under-lease  of  a  house  to  [*88] 
an  under-tenant,  who  was  by  trade  a  soap-boiler,  and  who,  for 
the  convenience  of  his  trade,  put  up  fats,  coppers,  tables,  parti- 
tions, and  paved  the  back  side,  etc.,  and  thereafter,  upon  a  fieri 
facias  against  such  under-tenant,  the  sheriff  took  up  all  these 
things,  and  left  the  house  stripped  and  in  a  ruinous  condition, 
so  that  the  first  lessee  was  liable  to  make  it  good,  and  thereupon 
brought  a  special  action  on  the  case  against  the  sheriff  and 
those  that  bought  the  goods   for  the  damage  done  to  the  house; 

"Upon  the  whole,  then,  it  can  scarcely  be  inferred  that  the  expressions 
used  by  the  court  in  20  Hen.  VII.,  13,  were  employed  in  any  other  sense 
than  as  mere  general  examples  of  fixtures,  the  object  of  which  was  to 
illustrate  the  legal  doctrine  of  an  exception  introduced  for  the  benefit  of 
all  tenants  alike,  by  a  less  rigid  construction  of  the  old  rule  of  law.  In- 
deed, with  regard  to  the  dictum  itself,  it  should  be  observed  that  it  is 
entirely  extrajudicial,  and  appears  in  a  decision  in  which  the  judgment 
of  the  court  proceeded  on  a  totally  different  principle."  Mr,  Brown,  in 
his  work  on  Fixtures  (§§  45-47),  advocates  the  same  idea.  On  the  other 
hand,  it  was  observed  by  the  English  editor  of  Smith's  Leading  Cases  (2 
Smith's  Lead,  Cas,,  *240),  with  reference  to  this  case,  as  follows:  "Mr, 
Amos,  in  his  valuable  work,  contends,  with  much  ingenuity,  that  this  case 
establishes  an  exception  in  favor  of  otlier  fixtures  set  up  by  lessees  for 
years,  besides  trading  fixtures,  and  he  argues  that  the  words  'si  le  lessee 
a  fait  ascun  furneis  pur  son  avantage,'  must  be  taken  to  mean,  if  the 
lessee  hav«  set  up  any  furnace  for  his  pleasure:  and  he  cites  a  book 
entitled  'Un  Abridgement  de  touts  les  cms  du  Roy  Ucnri  le  Sept,'  whoro 
the  words  'pur  son  plesure'  are  subtituted  for  'pur  son  avantage.'  But 
this  abridgement  is  scarcely  to  be  relied  on,  for  it  omits  the  subsequent 
words  'pur  occupier  son  occupation,'  which  are  very  important  to  tho 
question  mooted  by  Mr,  Amos.  There  certainly  appears  to  bo  some  im- 
probability in  the  idea  of  the  lessee  having  put  up  a  fuin.Ho  in  his  house 
for  pleasure.  Besides,  Co.  Lit,,  53  a,  is  express  that  in  ordinary  cases  a 
furnace  could  not  be  removed;  and  if  it  were  removable  in  all  cases,  why 
should  the  words  'pur  son  avantage'  have  been  added  at  all?"  See,  also, 
Elwes  V,  Maw,  3  East,  38   (1802), 

1  1   Rnlk.,  .".fiS    riTOS);   s.'  C,  Holt,  65, 

2  See  tlic  rases  hereinafter  cited  in  this  chapter. 

133 


*S3  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

and  it  was  held,  that  during  the  term  the  soap-boiler  might 
well  remove  the  fats  he  set  up  in  relation  to  trade,  and  that  he 
might  do  it  by  the  common  law  (and  not  by  virtue  of  any  spe- 
cial custom),  in  favor  of  trade  and  to  encourage  industry.  But 
after  the  term  they  become  a  gift  in  law  to  him  in  reversion, 
and  are  not  removable. 

The  principle  upon  which  the  privilege  of  removing  trade 
fixtures  was  granted  to  the  tenant,  was  stated  by  Lord  Holt 
in  Poole's  case,  above  cited,  to  be  in  favor  of  trade  and  to  en- 
courage industry;  and  this  view  has  received  the  support  of 
many  eminent  judges,  and  may  probably  be  regarded  as  the 
original  ground  of  the  exception.  The  same  ground  has  also 
been  stated  in  other  cases  arising  in  the  courts  of  equity  and 
common  law  between  executors  of  tenant  for  life  and  the  re- 
mainder-man, and  between  executor  and  heir,  some  of  which 
are  referred  to  in  the  note  below.^ 

3  In  Lawton  v.  Lawton,  3  Atk.,  13    (1743),  the  material  question  was 
whether  a  fire  engine  set  up  for  the  benefit  of  a  colliery  by  a  tenant  for 
life  should  be  considered  as  personal  estate  and  go  to  his  executor,  or  fixed 
to  the  freehold  and  go  to  the  remainder-man.     In  relation  to  this  question, 
Lord  Hardwicke  said:      "But  then  it  has  been  insisted  that   fixing  it  in 
order  to  make  it  work,  is  properly  an  annexation  to  the  freehold.     To  be 
sure,  in  the  old  cases,   they  go  a  great  way  upon  the  annexation   to   the 
freehold,  and  so  long  ago  as  Henry  the  Seventh's  time,  the  courts  of  law 
construed  even  a  copper  and  furnaces  to  be  part  of  the  freehold.     Since 
that  time,  the  general  ground  the  courts  have  gone  upon,  of  relaxing  this 
strict  construction  of  law  is,   that   it  is  for  the  benefit   of  the  public  to 
encourage  tenants  for  life  to  do  what  is  advantageous  to  the  estate  during 
their  term."     See,  also,  Dudley  v.  Warde,  Ambl.,  113,  114    (1751);  Pen- 
ton  V.  Eobart,  2  East,  88   (1801);   Bull.  N.  P.,  34;  Lawton  v.  Salmon,  1 
H.  Bl.,  259,  note   (1782)  ;s.  C,  3  Atk.,  16  note;  Mansfield  v.  Blackburne, 
6  Bing.  N.  C,  439   (1840);  Elwes  v.  Maw,  3  East,  38   (1802);  Gibson  v. 
Hammersmith,   &c.,   Eailway   Co.,   2  Drew   &   Sm.,   608    (1862) ;    Powell  v. 
Monson  Man'f'g  Co.,  3  Mason  C.  C,  465   (1824);  Van  Ness  v.  Pacard,  2 
Pet.,   143    (1829);    White  v.   Arndt,  1   Whart.,   94    (1835).     In   Elwes   v. 
Maw    (supra),   Lord    Ellenborough   said:      "In    deciding   whether   a    par- 
ticular fixed  instrument,  machine,  or  even  building,   should  be  considered 
as  removable  by  the  executor,  as  between  him  and  the  heir,  the  court,  in 
the  three  principal  cases  on  this  subject   (viz.,  Lawton  v.  Lawton,  3  Atk., 
13;     *     *     *     Lord    Dudley    and    Lord    Warde,    Ambler,    113;     *     *     * 
and  Lawton,   executor,   v.   Salmon,   E.,   22   G. .  3,   1   H.  Bl.,    259  in   notis, 
*     *     *     )   the  court  may  be  considered  as  having  decided  mainly  on  this 
ground:    that    where    the    fixed    instrument,    engine    or   utensil    (and    the 

134 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *89 

Wliile  the  ground  above  stated  was  doubtless  the  original 
and  main  ground  for  making  the  exception  as  to  trade  fixtures, 
*as  between  landlord  and  tenant,  it  does  not  now  seem  to  [*89] 
be  the  only  ground  upon  which  it  may  be  satisfactorily  rested. 
The  rule  may  now  properly  be  said  to  be  founded  upon  a  variety 
of  reasons,  among  which  may  be  mentioned  the  grounds  of  public 
policy  already  stated,  and  that  the  intention  of  the  tenant  in 
making  the  annexation  for  the  purposes  of  trade,  his  interest 
in  the  land  being  only  limited  and  temporary,  is  not  ordinarily 
thereby  to  make  a  permanent  accession  to  the  realty,  but  sim- 
ply with  the  view  of  better  enjoying  the  articles  annexed,  or 
using  them  in  the  way  of  his  trade,  as  chattels,  and  with  the 
intention  of  removing  such  articles,  on  the  termination  of  his 
interest  in  the  land.  It  is  accordingly  held  that  such  intention 
is  always  a  material  inquiry  in  determining  whether  an  article 
is  removable  as  a  trade  fixture.^     And  if  the  intention  clearly 

building  covering  the  same,  falls  within  the  same  principle)  was  an 
accessory  to  a  matter  of  a  personal  nature,  that  it  should  be  itself  con- 
sidered as  personalty.  The  fire  engine  in  the  cases  in  3  Atk.,  and  Ambler, 
was  an  accessory  to  the  carrying  on  the  trade  of  getting  and  vending 
coals;  a  matter  of  a  personal  nature." 

4  Linahan  v.  Barr,  41  Conn.,  471  (1874).  In  this  case  a  leased  building 
having  been  destroyed  by  fire,  the  lease  having  yet  two  years  to  run,  the 
tenant  erected  a  one-story  brick  building  on  the  old  foundation  walls, 
except  in  the  rear,  which  was  an  unbroken  brick  wall  from  the  cellar  bot- 
tom, saying  at  the  time  to  the  landlord  that  he  knew  it  would  belong  to 
the  landlord,  that  he  did  not  intend  to  remove  it  at  the  expiration  of  his 
lease,  and  that  the  rent  which  he  would  receive  during  the  term  would  pay 
the  cost  of  construction.  Held,  that  these  declarations  of  the  tenant  were 
admissible  in  evidence  to  show  the  intention  of  the  tenant  in  erecting  the 
building,  as  against  a  purchaser  from  the  tenant  claiming  the  right  to 
remove  the  building  as  a  trade  fixture  at  the  end  of  the  term;  and  that 
these  declarations  and  the  manner  of  construction  (which  latter,  though 
not  conclusive,  is  an  important  consideration),  showed  the  intent  of  the 
lessee  that  the  building  should  become  a  part  of  the  realty.  So  held  on  a 
petition  for  an  iiijimctinn  to  prevent  the  removal  of  the  building.  See, 
also,  Wall  V.  Hinds,  4  Gray,  271  (1855).  [Sec  Morey  v.  Hoyt,  62  Conn., 
542,  557  (1893)  ;  Sowles  v.  Kaymer,  110  Mich.,  189  (1896).  Where  a 
tenant,  in  fulfillment  of  a  covenant  in  his  lease,  erects  a  frame  building, 
thirty  by  sixty,  on  brick  foundations  sunk  into  the  eartli,  it  shows  an 
intent  that  it  should  not  remain  tlm  tenant's  property.  Deane  v.  Hutchin- 
son, 40  N.  J.  Eq.,  83  (1885).  To  have  the  right  to  remove  erections 
placed  upon  the  premises  by  a  tenant,  they  must  have  been  made  under 

135 


*S9  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

such  circumstances  as  show  that  the  tenant  made  them  of  his  own  volition 
and  for  his  own  benefit,  intending  that  they  should  remain  his  property, 
and  not  in  fulfillment  of  a  duty  owing  the  lessor.  Tunis  Lumber  Co.  v. 
Denis  Lumber  Co.,  97  Va.,  682,  686  (1899).  In  Holmes  v.  Standard  Pub. 
Co.,  55  Atl.,  1107,  1108  (N.  J.  Ch.,  1903),  the  fact  that  the  tenant  had 
taken  a  five-year  lease,  with  option  to  renew  or  purchase,  tended,  with 
other  facts,  to  indicate  an  intention  to  make  a  building  permanent;  and 
an  offer  by  the  tenant  to  repair  the  injury  occasioned  by  the  removal 
of  a  fixture,  has  no  bearing  upon  the  question  of  his  intention  in  making 
an  annexation,  and  can  not  affect  the  landlord's  rights.  That  the  land- 
lord and  tenant  were  brother  and  sister,  and  that  no  rent  was  paid,  leads 
to  the  conclusion  that  a  structure  erected  by  a  tenant  was  intended  to  be 
permanent.  Fortescue  v.  Bowler,  55  N.  J.  Eq.,  741,  745  (1897).]  So  in 
Seeger  v.  Pettit,  77  Penn.  St.,  437  (1875),  it  was  held,  that  evidence  that 
a  firm  (the  tenants),  treated  the  articles  in  question  as  their  own  property, 
and  included  them  among  their  assets,  was  competent  on  the  question  of 
intention. 

[On  the  subject  of  intention,  see  Koyce  v.  Latshaw,  15  Colo,  App.,  420, 
424  (1900)  ;  Western  &  Atlantic  E.  E.  Co.  v.  State,  14  L.  E.  A.,  438,  453 
(Ga.  Spec.  Com.,  1891);  Gordon  v.  Miller,  28  Ind.  App.,  612,  616  (1901); 
Eyder  v.  Faxon,  171  Mass.,  206,  208  (1898);  Carver  v.  Gough,  153  Pa. 
St.,  225,  228  (1893) ;  Straight  v.  Mahoney,  16  Pa.  Super.,  155,  158  (1901) ; 
and,  ante,  pp.  *22  and  *41.] 

[An  intention  not  to  make  an  annexation  permanent  is  shown  by  mak- 
ing a  return  thereof  as  taxable  personal  property;  which  is  not  overcome 
by  the  fact  that  the  tenant  had  a  right  to  purchase  the  premises,  no 
steps  having  been  taken  to  make  such  purchase.  Barker  v.  Cincinnati 
Brick  Co.,  4  Ohio  Dec,  270,  271  (1896)  ;  by  the  assent  of  the  lessor  in 
the  lease  to  the  erection  of  a  building  by  the  lessee,  and  a  direction  by 
the  lessor  that  it  should  be  so  built  that  it  could  be  removed  when  the 
lease  expired,  and  by  the  lessor  making  no  reply  when  told  by  the  lessee 
that  he  would  have  to  mortgage  the  building  to  pay  for  it.  Eyder  v. 
Faxon,  171  Mass.,  206,  208  (1898) ;  by  the  lessor  claiming  a  lien.  Cuppy 
V.  O 'Shaughnessy,  78  Ind.,  245,  249  (1881);  by  a  contract  that  the  lessor 
has  to  buy.  New  Orleans  v.  Euss,  27  La.  Ann.,  413  (1875) ;  by  the 
annexation  being  undesirable  except  upon  the  improbable  hypotheses  that 
the  landlord  would  not  lease  the  premises  for  any  other  use  than  a  meat- 
market.  Ward  V.  Earl,  86  111.  App.,  635,  640  (1899);  by  giving  a  chattel 
mortgage  for  the  price,  and  a  bill  of  sale.  Hewitt  v.  Watertown  Steam 
Engine  Co.,  65  111.  App.,  153,  157  (1895).  See,  also,  Bernheimer  v. 
Adams,  70  App.  Div.,  114,  118  (1902),  aff'd  175  N.  Y.,  472  (1903);  by 
giving  a  chattel  mortgage  for  the  price,  by  the  lessor  levying  upon  the 
property,  and  where  it  would  be  unreasonable  to  suppose  that  a  lessee 
would  add  three  thousand  dollars'  worth  of  property  to  a  mine  which  he 
had  leased  for  nine  months.  Hewitt  v.  General  Electric  Co.,  164  111.,  420, 
424  (1897);  61  111.  App.,  168,  169  (1895);  by  the  landlord,  after  the 
termination  of  the  lease,  making  no  claim  to  the  property  and  preferring 

136 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *90 

appears  to  make  the  articles  annexed  a  permanent  accession  to 
the  realty,  pur  un  profit  del'  enheritance,  or  perpetui  usus 
causa,  such  intention  will  prevail,  and  such  articles  may  not 
♦thereafter  be  removed  without  the  permission  of  the  [*90] 
landlord.!     With  regard  to  the  comparative  extent  to  which  this 

that  it  should  be  removed,  and  the  property  having  caused  an  expense  of 
two  thousand  dollars  under  a  lease  for  a  single  year.  Crerar  v,  Daniels, 
109  111.  App.,  654,  656  (1903) ;  by  the  annexation  not  having  been  made 
to  the  walls  nor  to  the  foundations  of  the  building,  and  by  the  tenant's 
selling  them,  and  an  endeavor  of  the  landlord  to  buy  them.  Baker  v. 
McClurg,  96  111.  App.,  165,  171  (1901),  aflf'd  198  111.,  28  (1902);  by  the 
articles  having  been  made  in  sections  and  so  fastened  as  to  be  removed 
readily.     Eoth  v.  Collins,  109  Iowa,  501,  503   (1899).] 

[Where  a  building  is  leased  for  a  short  term  for  a  roller  skating  rink, 
and  the  lessee  covenants  not  to  injure  the  floor,  and  that  certain  kinds  of 
skates  would  not  be  used  unless  the  floor  was  protected,  and  that  he  will 
leave  the  premises  in  repair,  this  implies  that  he  would  remove  a  floor 
covering  the  original  floor  and  making  it  higher,  and  which  could  be 
removed  without  injury  to  the  freehold.  Howell  v.  Listonville  Kink  Co., 
13  Ont.,  476,  492   (1886).] 

[The  right  given  in  the  lease  to  the  lessees  to  use  standing  timber  for 
such  buildings  as  they  should  erect,  was  a  concession  by  the  lessors,  and 
does  not  in  any  manner  affect  the  right  of  removal.  Conrad  v.  Saginaw 
Min.  Co.,  54  Mich.,  249,   257    (1884).] 

[Yielding  possession  may  be  evidence  that  a  structure  was  not  intended 
for  the  purpose  of  trade,  and  that  it  is  abandoned,  but  it  will  not  change 
its  established  character.  Western  N.  C.  K.  K.  v.  Deal,  90  N.  C,  110, 
113  (1884).] 

[Because  the  lessee  is  gi%'en  the  privilege,  in  his  lease,  of  buying  the 
land,  does  not  show  a  conclusive  presumption  that  a  building  was  placed 
thereon  by  him  with  the  intention  of  permanently  annexing  it  to  the  free- 
hold. Osborn  v.  Potter,  101  Mich.,  300,  302  (1894)  ;  but  where  he  erects 
a  five  thousand  dollar  warehouse,  it  is  evidence  of  an  intention  to  make 
it  permanent.  Bank  of  Louisville  v,  Baumcistcr,  87  Ky.,  6,  16  (1888). 
See,  also,  post,  p.  *158,  and  Hussey  v.  Ryan,  64  Md.,  426,  434  (1885), 
where  it  says  that  "as  the  lot  was  a  vacant  one  when  he  leased  it,  the 
presumption  is,  that  he  has  the  ownership  of  and  the  right  to  enter  and 
take  away  all   structures  erected   by   him   during  his   tenancy."] 

i  The  different  intentions  with  which  the  annexations  are  made,  and  the 
different  effects  given  to  such  intentions,  are  well  illustrated  in  the  Year 
Book,  20  Hen.  7,  13  b,  pi.  24  (1504),  with  reference  to  annexations  made 
by  the  ancestor  pur  un  profit  del'  enheritance,  as  contrasted  with  annexa- 
tions made  by  a  lessee  for  years  pur  son  avantnge;  pur  occupier  son 
occupation;  though  of  course  the  fact  that  the  annexation  was  made  by 
the   ancestor  would   alone   furnish   a   strong   presumption    that   it   was   in- 

137 


•91  THE  L.VW  OF  FIXTURES.  [CHAP.   IV. 

relaxatiou  of  tlie  rule  has  beeu  carried,  it  may  be  remarked  gen- 
erally that  the  privilege  of  removing  fixtures  is  construed  more 
liberally  in  favor  of  the  tenant  in  cases  arising  out  of  the  ordi- 
nary relation  of  landlord  and  tenant,  than  in  the  cases  arising 
between  tenant  for  life  or  in  tail  and  the  remainderman  or 
reversioner,  or  between  the  executor  of  tenant  in  fee  and  the 
heir,  in  which  last  case  there  is  the  least  relaxation ;  2  while, 
with  reference  to  trade  fixtures  as  between  landlord  and  tenant, 
the  rule  is  even  more  liberally  extended  and  applied  than  with 
reference  to  ordinary  cases  of  fixtures  other  than  trade  fixtures 
[*91]  *arising  between  those  or  other  parties.^  And  hence  it  is 
nsuall.y  stated  that  in  general  the  decisions  in  favor  of  the 
executors  of  tenants  for  life,  in  tail,  or  in  fee,  as  against  the 
remaindermen,  reversioners  or  heirs,  may  be  considered  as  of 
authority  to  sustain  the  right  of  an  ordinary  tenant  to  remove 
fixtures  as  against  his  landlord ;  and  that  the  decisions  in  each 
of  those  relations  may  be  considered  as  of  authority  in  the  rela- 
tions where  the  rule  is  more  liberally  applied.'* 

tended  for  the  benefit  of  the  inheritance,  which  does  not  exist  in  the  case 
of  a  lessee  for  years.  See  remarks  of  Erskine,  C.  J.,  in  Ex  parte  Lloyd 
(or  Loyd),  3  Dea.  &  Ch.,  765,  779  (1834),  s.  C,  1  Mont.  &  Ayr.,  494. 
See,  also,  the  preceding  note  and  the  subsequent  chapter,  considering  the 
relation  of  executor  and  heir;  Wall  v.  Hinds,  4  Gray,  271  (1855).  [Baker 
V.  McClurg,  96  111.  App.,  165,  171  (1901),  aff'd  198  111,  28  (1902); 
Weller  v.  Everitt,  25  Viet.,  683,  686   (1900).] 

[A  portable  engine  and  saw-mill  placed  upon  land  by  a  lessee  for 
ninety-nine  years,  are  not  fixtures.  Hughes  v.  Edisto  Shingle  Co.,  51  S. 
C,  1,  29  (1897).] 

2Lawton  v.  Lawton,  3  Atk.,  13,  15,  16  (1743);  Dudley  v.  Warde,  1 
Ambl.,  114  (1751);  Elwes  v.  Maw,  3  East,  38  (1802);  Lee  v.  Eisdon,  7 
Taunt.,  191  (1816);  Whitehead  v.  Bennett,  27  L.  J.  (N.  S.),  Ch.,  475 
(1858);  s.  c,  6  W.  E.,  351;  Van  Ness  v.  Pacard,  2  Pet.,  143  (1829); 
Wall  V.  Hinds,  4  Gray,  270  (1855)  ;  White  v.  Arndt,  1  Whart.,  95  (1835)  ; 
Harkness  v.  Sears,  26  Ala.,  496  (1855);  Cannon  v.  Hare,  1  Tenn.  Ch., 
22,  34  (1872) ;  1  South.  Law  Rev.  (1872),  p.  240.  [Youngblood  v.  Eu- 
bank, 68  Ga.,  630,  633  (1882)  ;  Baker  v.  McClurg,  96  111.  App.,  165,  172 
(1901);  McMath  v.  Levy,  74  Miss.,  450,  451  (1896);  Polle  v.  Eouse,  73 
Miss.,  713,  718  (1896);  Springfield  Co.  v.  Cole,  130  Mo.,  1,  9  (1895); 
Belvin  v.  Ealeigh  Paper  Co.,  123  N.  C,  138,  143  (1898)  ;  Asheville  Co. 
V.  Southwick,  119  N.  C,  611,  616   (1896).] 

3  Whitehead  v.  Bennett,  27  L.  J.  (N.  S.)  Ch.,  475  (1858)  ;  s.  C,  6  W.  E., 
351;  Van  Ness  v.  Pacard,  2  Pet.,  143  (1829),     [See,  post,  p.  *128.] 

4  See  those  relations  considered  post. 

138 


CHAP,   IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *91 

The  question  as  to  what  particular  articles  erected  by  a  ten- 
ant on  the  demised  premises  in  relation  to  his  trade,  come 
within  the  protection  of  the  law  as  being  trade  fixtures,  and 
hence  removable  by  the  tenant  at  the  expiration  of  his  term, 
gives  rise  to  a  great  variety  of  considerations  as  to  the  nature 
of  the  article,  its  UvSe,  the  degree  of  annexation,  etc.  Such  an- 
nexations may  consist  of  articles  of  machinery,  utensils,  etc.,  of 
a  perfect  chattel  nature  before  annexation  was  made,  and 
capable  of  detachment  and  use  elsewhere  in  connection  with 
other  realty;  or  the  articles  annexed  may  consist  of  buildings, 
etc.,  of  a  more  or  less  substantial  and  permanent  nature,  more 
or  less  capable  of  removal  and  reconstruction,  and  which,  hav- 
ing been  constructed  upon  the  land,  have  hitherto  had  no  ex- 
istence as  integral  chattels,  except  in  connection  with  the  land 
whereon  they  stand. 

It  has  long  been  well  settled  that  mere  utensils  or  machines 
and  other  articles  of  a  similar  nature,  being  themselves  of  a 
chattel  nature,  and  capable  of  being  detached  without  material 
injury  to  the  freehold  or  themselves  and  of  being  set  up  and 
used  elsewhere,  are  removable  by  the  tenant  or  his  vendee  dur- 
ing his  term.5  The  tenant's  right  of  removing  his  trade  fix- 
tures may  also  be  sold  or  mortgaged  by  him  as  personalty, 

5  See  Poole's  Case,  1  Salk.,  368  (1703);  s.  C,  Holt,  65,  where  the  vats, 
coppers,  tables,  partitions,  etc.,  of  a  soap-boiler  were  held  removable  fix- 
tures. 

So,  as  to  the  vats  and  vessels  of  a  dyer.  20  Hen.  7,  13  b,  pi.  24  (1504)  ; 
21  Hen.  7,  26  b  (1506),  semble.  See,  also,  Kelsey  v.  Durkee,  33  Barb., 
410    (1861). 

So,  as  to  the  furnace  of  a  dyer.  Day  v.  Austin,  Owen,  70  (1595) ; 
though  a  distinction  was  taken  between  a  furnace  fixed  to  the  middle  of 
the  house  and  to  the  wall,  which  distinction  may  now  probably  be  regarded 
as  exploded.  See,  also,  Kelsey  v.  Durkeo,  33  Barb.,  410  (1861).  [See, 
however,  Baker  v.  McClurg,  96  111.  App.,  165,  171  (1901),  aflP'd  198  111., 
28,  40  (1902),  where  the  fact  that  the  annexation  was  not  made  to  the 
wall  nor  to  the  foundation  but  in  the  middle  of  the  building,  was  rc- 
gar<led  as  evidence  of  intention.] 

[So,  as  to  steam  heater.  Podlech  v.  Phclan,  13  Utah,  333,  340  (1896). 
See,  also,  Insurance  Co.  of  N.  America  v.  Buckstaff,  92  N.  W.,  755  (Neb., 
1902).] 

[So,  as  to  a  range.  Townsend  v.  Underbill,  6  Pa.  Co.,  544  (1889). 
See,  also,  Livingston  v.  Sulzer,  26  Supr.  Ct.  (19  Hun),  375,  380  (N.  Y., 
1879),] 

139 


•91  THE  LAW  OP  FIXTURES.  [CIIAP.  IV. 

[So,  as  to  furnace-doors.  Ilackett  v.  Bennett,  12  N.  S,  W.,  Supr.  Ct., 
327,  333   (1874).] 

[So,  as  to  a  "reel"  oven,  extending  from  foundations  laid  in  the 
earth,  through  the  basement  and  first  and  second  stories  nearly  to  the 
roof.  Baker  v.  McClurg,  96  111.  App.,  165  (1901).  See,  also,  Rosenau 
V.  Syring,  25  Ore.,  386,  390  (1894),  as  to  a  bake-oven  of  brick  resting 
upon  a  platform  supported  by  posts  set  upon  the  ground.] 

So,  as  to  distillery  fixtures,  and  machinery  consisting  of  pipes,  copper 
stills,  kettles  or  boilers  masoned  up  in  brickwork,  and  a  steam  tub,  coolers 
and  worm  connected  with  the  boilers  by  logs  and  braces  affixed  to  the 
building,  etc.  Eeynolds  v.  Shuler,  5  Cow.,  323  (1826) ;  Moore  v.  Smith, 
24  111.,  512  (1860) ;  s.  c,  26  111.,  392.  See,  also,  Terry  v.  Robins,  13 
Miss.,  291    (1845). 

So,  as  to  the  retorts,  cisterns,  etc.,  of  an  oil  refinery.  Bidder  v.  Trinidad 
Petroleum  Co.,  17  W.  E.,  153   (1868). 

[So,  as  to  an  iron  tank  upon  a  foundation  of  brickwork  and  cement. 
Cooper  V.  Johnson,  143  Mass.,  108   (1886).] 

So,  as  to  salt  pans  set  up  by  a  tenant  in  salt  works.  See  Lawton  v. 
Salmon,  1  H.  Bl.,  259,  note  (1782)  ;  s.  c,  3  Atk.,  16  note,  per  Lord  Mans- 
field; Earl  of  Mansfield  v.  Blackburne.  6  Bing.  N.  C,  426  (1840);  S.  C,  8 
Scott,  720,  per  Tindal,  C.  J. 

So,  as  to  steam  engines  erected  by  a  tenant,  for  years  or  for  life,  for 
trade  purposes.  Lawton  v.  Lawton,  3  Atk.,  13  (1743) ;  Dudley  v.  Warde, 
1  Ambl.,  113  (1751);  Moore  v.  Wood,  12  Abb.  Pr.,  393  (1860);  Merritt 
V.  Judd,  14  Cal.,  59  (1859);  Lacey  v.  Giboney,  36  Mo.,  320  (1865); 
Lemar  v.  Miles,  4  Watts,  330  (1835)  ;  Hey  v.  Bruner,  61  Penn.  St.,  87 
(1869)  ;  Minshall  v.  Lloyd,  2  M.  &  W.,  450  (1837)  ;  Davis  v.  Moss,  38 
Penn.  St.,  346  (1861).  See,  also,  Kelsey  v.  Durkee,  33  Barb.,  410  (1861); 
Cook  V.  Champlain  Transpor.  Co.,  1  Den.,  102  (1845).  [Updegraff  v. 
Lesem,  15  Colo.  App.,  297  (1900);  Baker  v.  McClurg,  96  111.  App.,  165 
(1901);  Gordon  v.  Miller,  28  Ind.  App.,  612,  614  (1901);  Smith  v.  Whit- 
ney, 147  Mass.,  479,  482  (1888)  ;  Conrad  v.  Saginaw  Min.  Co.,  54  Mich., 
249  (1884);  Torrey  v.  Burnett,  38  N.  J.  Law,  457,  458  (1875);  Conde  v. 
Lee,  55  App.  Div.,  401  (1900),  aflf'd  171  N.  Y.,  662  (1902);  Pronguey  v. 
Gurney,  37  Up.  Can.  Q.  B.,  347,  355  (1875)  ;  Byrnes  v,  Macarthur,  2  N. 
S.  W.  L.  E.,  57   (1881).] 

So,  as  to  iron  rails  laid  by  a  tenant  in  a  tunnel  in  a  coal  mine.  Heffner 
V,  Lewis,  73  Penn.  St.,  302  (1873).  [See,  post,  p.  *105.  Couch  v.  Welch, 
24  Utah,  36,  47   (1901);  Antrim  v.  Dobbs  (1891),  30  L.  R.,  Ire.,  424.] 

[So,  as  to  casing  in  an  oil  or  gas  well,  a  derrick  and  other  appliances. 
Shellar  v.  Shivers,  171  Pa.  St.,  569  (1895) ;  Siler  v.  Globe  Glass  Co.,  21 
Ohio  C.  C,  284,  288   (1900).] 

[So,  as  to  a  shaft-house  and  mining  machinery.  Updegraff  v.  Lesem, 
15  Colo.  App.,  297    (1900).] 

So,  as  to  steam  boilers,  etc.,  though  inclosed  in  brick.  Davis  v.  Moss; 
Moore  v.  Wood;  Lacey  v.  Giboney;  Hey  v.  Bruner  (supra).  See,  also, 
Kelsey  v.   Durkee,  33   Barb.,  410    (1861);    Holbrook  v.   Chamberlin,   116 

140 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *91 

Mass.,  155  (1874).  [Baker  v.  McClurg,  96  111.  App.,  165  (1901);  Gordon 
V.  Miller,  28  Ind.  App.,  612,  614  (1901);  Smith  v.  Whitney,  147  Mass., 
479,  482  (1888);  Cooper  v.  Johnson,  143  Mass.,  108  (1886);  Winner  v. 
Williams,  82  Miss.,  669  (1903);  Conde  v.  Lee,  55  App.  Div.,  401  (1900), 
aff'd  171  N.  Y.,  662  (1902);  Pronguej  v.  Gurney,  37  Up.  Can.  Q.  B.,  347, 
355  (1875);  Hughes  v.  Towers,  16  Up.  Can.  C.  P.,  287  (1865);  Byrnes  v. 
Macarthur,  2  N.  S.  W.  L.  R.,  57;  see,  also,  Livingston  v.  Sulzer,  26  Supr. 
Ct.  (19  Hun),  375,  380  (N.  Y.,  1879)  ;  so,  as  to  an  upright  boiler  to  spray 
oil  on  brick-kilns,  and  a  pressed  brick  machine  bolted  to  a  brick  founda- 
tion in  the  ground.  Barker  v.  Cincinnati  Brick  Co.,  4  Ohio  Dec,  270, 
271    (1896).] 

So,  as  to  shafting,  belting,  etc.  Moore  v.  Wood;  Holbrook  v.  Chamber- 
lin;  Hey  v.  Bruner  (supra).  [Baker  v.  McClurg,  96  111.  App.,  165  (1901); 
Hughes  V.  Towers,  16  Up.  Can.  C.  P.,  287   (1865).] 

So,  as  to  gas  fixtures  in  a  store.  Lawrence  v.  Kemp,  1  Duer,  363 
(1852);  Ex  parte  Morrow,  1  Lowell's  Dec,  386  (1869);  s.  c,  2  N.  B.  R. 
(2d  ed.),  665.  See  Guthrie  v.  Jones,  108  Mass.,  191  (1871);  Seeger  v. 
Pettit  (infra).  [See,  post,  p.  *137.  McCall  v.  Walter,  71  Ga.,  287,  290 
(1883);  Smusch  v.  Kohn,  49  N.  Y.  Supp.,  176  (1898);  Argles  v.  McMath, 
26  Ont.,  224,  248  (1895),  aff'd  23  Ont.  App.,  44,  47  (1896);  see,  also, 
Felcher  v.  McMillan,  103  Mich.,  494,  499  (1894).  That  gas-fixtures  are 
removable  as  between  grantor  and  grantee,  see,  post,  p.  *299.  As  to 
plumbing  and  gas-fittings,  see  Livingston  v.  Sulzer,  26  Supr.  Ct.  (19 
Hun),  375,  380  (X.  Y.,  1879);  Dunn  v.  Garrett,  7  N,  Brunsw.,  218,  222 
(1851).] 

[So,  of  gas-pipes  and  water-pipes.  Atkinson  v.  Noad,  14  Low.  Can., 
159   (1863).] 

So,  of  sitting  stools.  Lawrence  v.  Kemp  (supra).  [So,  as  to  opera- 
chairs.     Pratt  V.  Keith,  5  Montg.  Co.   (Pa.),  113,  114   (1889).] 

So,  as  to  platform  scales.  Seeger  v.  Pettit,  77  Penn.  St.,  437  (1875); 
Allen  V.  Kennedy,  40  Ind.,  142  (1872);  Bliss  v.  Whitney,  9  Allen,  114 
(1864).  The  scales  in  this  case  were  set  in  the  highway,  and  extended 
under  a  building  on  adjoining  land,  and  up  into  a  room  where  the  weight 
was  ascertained.     [McCail  v.  Walter,  71  Ga.,  287,  290   (1883).] 

So,  as  to  shelving  in  a  store.  Ex  parte  Morrow,  1  Lowell's  Dec,  386 
(1869)5  s.  c,  2  N.  B.  R.  (2d  ed.),  665.  [Berger  v.  Hoerner,  36  111.  App., 
360  (1889);  Roth  v.  Collins,  109  Iowa,  501,  503  (1899);  Cariin  v.  Ritter, 
68  Md.,  478,  493  (1888);  Cubbins  v.  Ayres,  72  Tenn.,  329  (1880); 
Argles  v.  McMath,  26  Ont.,  224,  248  (1895),  aff'd  23  Ont.  App.,  44,  47 
(1896);  Laidiaw  v.  Taylor,  2  Nova  S.,  155  (1889);  see,  also,  .Tosslyn  v. 
McCabe,  46  Wis.,  591,  592  (1879)  ;  Orr  v.  Davis,  17  N.  Z.,  106,  109  (1898). 
In  Cubbins  v.  Ayres,  supra,  the  shelving  was  in  a  hotel.] 

[So,  as  to  cases  ten  feet  high,  thirty  feet  long,  containing  drawers, 
cupboards  ;ind  mirrors,  wiHi  cornicp  at  the  top  and  heavy  molding  at  the 
bottom.  The  base-board  around  the  room  did  not  extend  behind  the  cases, 
and  they  were  brought  upon  the  premises  in  sections,  and  were  fastened 
to  the  wall  by  nails.     Kimball  v.  Grand  Lodge,  131  Mass.,  59   (1881).] 

141 


•91  rUE  lxi\.W  OP  FIXTURES.  [CIIAP,  IV. 

So,  as  to  tho  liyilraulie  press  of  a  tallow  chandler,  put  into  a  hole  in  the 
groinul  ami  walled  up  with  solid  masonry,  the  bottom  of  the  cylinder  rest- 
ing on  flanges  on  the  stone  wall  even  with  the  Hour,  the  part  of  the  press 
around  the  cylinder  nailed  to  the  floor,  and  braced  to  keep  it  steady^ 
Finney  v.  Watkins,   13  Mo.,  291    (1850). 

So,  as  to  mill  stones  and  machinery.  See  Deeble  v.  McMullen,  8  Ir. 
Com.  Law,  355   (1S57). 

So,  as  to  a  corn  mill  and  the  machinery  for  running  a  chair-factory. 
Lacey  v.  Giboney,  36  Mo.,  320  (1865).  [See  Garrison  v.  Webb,  107  Ala., 
499  (1894),  as  to  a  saw-mill.  So,  as  to  a  gang  edger  in  a  saw-mill, 
i^tokoe  V.  Upton,  40  Mich.,  581,  584  (1879).  So,  as  to  a  long  wall  under- 
cutter  in  a  mine.  Hewitt  v.  General  Elec.  Co.,  164  111.,  420  (1897) ;  61 
111.  App.,  168  (1895).  See,  also,  Gordon  v.  MiUer,  28  Ind.  App.,  612, 
614  (1901);  Wentworth  v.  Woods  Co.,  163  Mass.,  28,  33  (1895);  Byrnes 
V.  Macarthur,  2  N.  S.  W.  L.  E.,  57  (1881) ;  and  Boyd  v.  Wilson,  18  Eev. 
Leg.,  65   (1883),  as  to  machinery.] 

So,  as  to  railway  iron,  frogs,  spikes  and  bolts.  Northern  Central  Rail- 
way Co.  V.  Canton  Co.,  30  Md.,  347  (1869)  ;  s.  c,  8  Am.  Law  Reg.  (N.  S.), 
540.  [So,  as  to  a  scenic  railway  with  foundation  of  brick  piers.  Thomp- 
son Scenic  Co.  v.  Young,  90  Md.,  278,  282   (1899).] 

Bowling  alleys  erected  by  a  tenant,  the  floor  of  each  alley  laid  on  cleats 
placed  on  the  floor  and  nailed  thereto  with  shingle  nails;  battened  parti- 
tions between  the  alleys,  resting  in  grooves  cut  in  blocks  of  wood  nailed 
to  the  floor;  temporary  runs  for  the  balls,  and  a  temporary  balcony,  fas- 
tened to  the  building  about  as  firmly  as  the  alleys;  held,  to  be  removable 
as  trade  fixtures.  Hanrahan  v.  O'Reilly,  102  Mass.,  201  (1869).  See, 
however,  O'Brien  v.  Kusterer,  27  Mich.,  289   (1873). 

So,  as  to  partitions  and  box-stalls  in  a  saloon.  Dingley  v.  Buffum,  57 
Me.,  381  (1869).  [As  to  partitions,  see  Ward  v.  Earl,  86  111.  App.,  635 
(1899) ;  Bernheimer  v.  Adams,  70  App.  Div.,  114,  120  (N.  Y.,  1902) ; 
Smusch  V.  Kohn,  49  N.  Y.  Supp.,  176  (1898);  Podlech  v.  Phelan,  13  Utah, 
333,  340  (1896)  ;  Hughes  v.  Towers,  16  Up.  Can.  C.  P.,  287  (1865)  ;  see, 
also,  Hanson  v.  News  Pub.  Co.,  97  Me.,  99,  102  (1902);  and  Orr  v, 
Davis,  17  N.  Z.,  106,   109    (1898),  as  to  a  glass  screen.] 

[So,  as  to  an  office,  five  by  seven,  and  five  feet  high,  a  brass  window 
fixture  for  displaying  goods,  and  a  mirror.  Argles  v.  McMath,  26  Ont., 
224,   248    (1895),   aff'd   23   Ont.   App.,   44,   47    (1896).] 

[So,  as  to  a  cold  storage  room,  twelve  by  fourteen,  and  ten  feet  high, 
attached  by  strips  and  nails  to  the  wall  and  floor;  and  an  office  attached 
to  the  ■wainscoting  and  to  the  ceiling  by  a  quarter  round.  Ward  v.  Earl, 
86  111.  App.,  635    (1899).] 

[So,  as  to  water-closets.  Bernheimer  v.  Adams,  70  App.  Div.,  114,  120 
(N.  Y.,  1902).] 

So,  as  to  an  oyster  and  trench  counter,  and  a  bar  in  a  saloon.  Guthrie 
V.  Jones,  108  Mass.,  191  (1871).  [As  to  counters,  bars,  bar-fixtures,  sinks, 
connecting  pipes,  show-cases,  see  McCall  v.  Walter,  71  Ga.,  287,  290 
(1883);  Berger  v.  Hoerner,  36  111.  App.,  360  (1889);  Roth  v.  Collins,  109 

142 


CHAP,  rv.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *91 

Iowa,  501,  503  (1899);  Carlin  v.  Eitter,  68  Md.,  478,  493  (1888); 
Smusch  V.  Kohn,  49  N.  Y.  Supp.,  176  (1898)  ;  Asheville  Co.  v.  Southwick, 
119  N.  C,  611,  616  (1896)  ;  Kenney  v.  Matlock,  12  Atl.,  589  (Pa.,  1888)  ; 
•Podlech  V.  Phelan,  13  Utah,  333,  340  (1896)  ;  Laidlaw  v.  Taylor,  2  Nova 
S.  L.  E.,  155  (1881)  ;  Cubbins  v.  Ayres,  72  Tenn.,  329  (1880).  See,  also, 
Patterson  v.  Gallagher,  25  Ore.,  227,  229    (1894).] 

[So,  as  to  a  copying-press  and  a  cheese-case.  McCall  v.  Walter,  71  Ga., 
287,  290   (1883).] 

[So,  as  to  tile  flooring.     Eoss  v.  Campbell,  9  Colo.  App.,  38,  40  (1896).] 

[So,  as  to  temporary  floors,  scantling,  presses,  vats,  and  cocks.  Hughes 
V.  Towers,  16  Up.  Can.  C.  P.,  287  (1865).  See,  also,  Crerar  v.  Daniels,  109 
111.  App.,  654   (1903),  as  to  planks  on  a  dock.] 

[So,  as  to  a  hanging  crib  or  swinging  floor  attached  by  lag-screws  to 
the  joists  overhead.  Chase  v.  New  York  Insulated  Wire  Co.,  57  111,  App., 
205    (1894).] 

[So,  as  to  a  platform  to  be  used  for  displaying  goods,  and  nailed  to  the 
walls,  and  connected  with  the  floor  by  stairs  nailed  at  each  end,  said 
platform  being  incapable  of  removal  without  being  taken  apart,  yet  with- 
out injury  to  the  building.     Shapira  v,  Barney,   30  Minn.,  59    (1882).] 

[So,  as  to  a  board  cupboard,  pump  and  shedding,  bath-tub,  ice-chest, 
copper  sink,  and  beer-rigging  in  hotel.  Kenney  v.  Matlpck,  12  Atl.,  589 
(Pa.,  1888).] 

So,  a  coal  bin,  walnut  railing,  stairs  and  balusters,  a  closet  and  walnut 
shelves  in  a  store,  may  be  removable  as  trade  fixtures.  Seeger  v.  Pettit, 
77  Pcnn.  St.,  437    (1875). 

So,  as  to  the  wooden  awning  erected  by  a  butcher  over  the  sidewalk 
adjoining  the  building,  to  keep  the  sun  off  from  his  vegetables  and  fruit 
stand.  Devin  v.  Dougherty,  27  How.  Pr.,  455  (1864).  [As  to  awnings 
and  storm-house,  see  Carlin  v.  Eitter,  68  Md.,  478,  493  (1888);  Bern- 
hcimcr  v.  Adams,  70  App.  Div.,  114,  120  (N.  Y.,  1902)  ;  Argles  v.  Mc- 
Math,  26  Ont.,  224,  228   (1895),  aff'd  23  Ont.  App.,  44,  47    (1896).] 

So,  as  to  a  vault,  built  on  its  own  foundation,  for  banking  uses  within  a 
building;  also  a  safe  therein,  too  largo  to  be  removed  without  tearing 
down  the  vault.  Dostal  v.  McCadden,  35  Iowa,  318  (1872).  [As  to  iron 
safes,  see  McCall  v.  Walter,  71  Ga.,  287,  290  (1883);  Eudd  v.  Anderson, 
12  Ky.  Law  E.,  489,  491  (1890);  Cubbins  v.  Ayres,  72  Tenn.,  329 
(1880).] 

[So,  as  to  electric  light  apparatus,  incandescent  lamps,  wire,  switch- 
board, electrical  instnimentH,  dyiianios  and  machinery.  Eoss  v.  Campbell, 
9  Colo.  App.,  38,  40  (189G)  ;  Hewitt  v.  General  Electric  Co.,  164  111.,  420 
(1897);  61  111.  App.,  168,  169  (1895);  Brown  v.  Eeno  Power  Co.,  55 
Fed.,  229  (U.  8.  C.  C,  Nev.,  1893);  Liebe  v.  Nicolai,  30  Ore.,  364,  375 
(1897).  See,  also,  Kansas  Trust  Co.  v.  Electric  Power  Co.,  116  Fed., 
904   (U.  S.  C.  C,  Mo.,   1902),  as  to  the  feed-wire  for  an  electric  railway.] 

[So,  as  to  a  sign-board  of  an  inn,  being  a  picture  painted  by  a  cele- 
brated artist.     Ex  parte  Sheen   (1880),  15  Co.  Ct.  &  Bankr.  Cas.,  39.] 

143 


*92  THE  LAW  OP  FIXTURES.  [CHAP,  IV. 

[*92]  *and  they  may  be  seized  and  severed  on  execution  against 
him,  as  personalty  during  the  term.i  The  right  of  removal  in 
such  cases  is  said  to  depend  upon  the  mode  in  which  the  thing  to 
be  removed  is  annexed  to  the  freehold,  and  the  effect  which  its 
removal  would  have  upon  the  premises.  It  may  be  exercised,  in 
such  a  case,  it  is  said,  whenever  it  is  not  contrary  to  any  pre- 
vailing usage,  and  causes  no  material  injury  to  the  estate,  and 

[So,  as  to  a  derrick  in  a  stone-quarry.     Honeyman  v.  Thomas,  25  Ore., 

539   (1894).] 

[So,  as  to  a  bridge  over  a  zanja  for  giving  access  to  a  lumber-yard. 
Security  Loan  Co.  v.  Williamette  Mills  Co.,  99  Cal.,  636,  640   (1893).] 

See,  also,  the  cases  hereinafter  cited,  in  relation  to  the  subjects  of 
Executor  and  Heir,  Tenant  for  Life  and  Kemainderman,  etc..  Bankruptcy, 

etc. 

1  Poole's  Case,  1  Salk.,  368   (1703);  s.  c.  Holt,  65;  Lacey  v.  Giboney, 
36  Mo.,  320    (1868);   Lemar  v.  Miles,  4  Watts,   330    (1835).      [McCall  v. 
Walter,   71   Ga.,   287,   290    (1883)  ;   Ward   v.   Earl,   86  111.   App.,   635,   641 
(1899)  ;  Gordon  v.  Miller,  28  Ind.  App.,  612,  617   (1901)  ;  Price  v.  Malott, 
85  Ind.,   266,   269   (1882);   McCarthy  v.  Burnet,  84  Ind.,   23,   27    (1882); 
Docking  V.  Frazell,  38  Kan.,  420,  423   (1888)  ;  Hayford  v.  Wentworth,  97 
Me.,  347   (1903);  Morrison  v.  Sohn,  90  Mo.  App.,  76   (1901);  Bernheimer 
V.  Adams,  70  App.  Div.,  114   (1902),  aff'd  175  N.  Y.,  472   (1903);  Town- 
send  V.  Underhill,  6  Pa.  Co.,  544,  545    (1889)  ;   Hughes  v.  Edisto  Shingle 
Co.,  51  S.  C,  1,  30   (1897);  Miller  v.  Muirhead   (1894),  21  Sess.  Cas.,  4th 
Ser.,  658,  660;  Pronguey  v.  Gurney,  37  Up.  Can.  Q.  B.,  347,  355   (1875); 
Hughes  v.   Towers,   16  Up.   Can.   C.  P.,   287    (1865)  ;    see,  also,   Dufifus   v. 
Bangs,  122  N.  Y.,  423,  428    (1890),  aff'g  50  Supr.  Ct.   (43  Hun),  52,  54 
(1887) ;    Metropolitan   Concert   Co.   v.   Sperry,   9    N.   Y.   St.   E.,   342,   343 
(1887),  aff'd  120  N.  Y.,  620  (1890);  Keefe  v.  Furlong,  96  Wis.,  219,  221 
(1897).     A  chattel  mortgage  of  trade  fixtures  "to  be  affixed"  is  valid  as 
between  the  parties.     Perry  v.  White,  111  N.   C,   197    (1892).]      See  this 
subject  further  considered,  with  reference  to  the  transfer  of  fixtures,  and 
their   liability  to   seizure   on   execution,   &c.    (post),   p.    *357.     But   where 
such    fixtures   are    so    permanently    annexed    as   to    become   parcel    of    the 
realty,  and  irremovable  by  the  tenant  as  against  his  landlord,  he  cannot, 
by  selling  or  mortgaging,  or  otherwise  dealing  with  them,  as  personalty, 
convey  to  another  the  right  of  removal  as  against  his  landlord.     He  can 
convey  no  greater  right  than  he  possesses  himself.     O'Brien  v.   Kusterer, 
-27  Mich.,  289    (1873).     See  next  note.     [Griffin  v.  Eansdell,  71  Ind.,  440, 
443   (1880);   Butler  v.  Colwell,   89  111.  App.,   133,  137    (1900);   Leman  v. 
Best,  30  111.   App.,   323,   325    (1888);   Bonney  v.   Foss,   62   Me.,   248,   252 
(1873)  ;   Smith  v.  Park,  31  Minn.,  70,  73   (1883)  ;   Rooney  v.  Stearns,  17 
N.  Y.  Weekly  Dig.,  322    (1883)  ;  Burkhardt  v.  Hopple,  6  Ohio  Dec,  127, 
128  (1897);  Menger  v.  Ward,  28  S.  W.,  821,  825   (Tex.  Civ.  App.,  1894); 
Orr  V.  Davis,  17  N.  Z.,  106,  110  (1898);  see,  also,  Allen  v.  Gates,  73  Vt., 

144 


CHAP.   IV,]  TRADE  FIXTURES,  AND  MIXED  CASES.  *93 

*where  the  thing  can  be  removed  without  losing  its  essen-  [*93] 
tial  character  or  value  as  a  personal  chattel.^ 

On  the  other  hand,  however,  there  may  be  annexations  made 
by  a  tenant  occupying  premises  for  trade  purposes,  of  so  inti- 
mate and  permanent  a  character  as  to  furnish  satisfactory  evi- 
dence that  the  annexations  were  intended  to  be  permanent  ac- 
*cessions  to  the  realty,  in  which  case  they  would,  of  course,  [*94] 
be  irremovable.- 

Between  these  two  extremes  there  are   a  variety  of  cases, 

222,  229  (1900) ;  Kendall  Mfg.  Co.  v.  Eundle,  78  Wis.,  150  (1890) ;  Davy 
V.  Lewis,  18  Up.  Can.  Q.  B.,  21.] 

[One  cannot  successfully  assert  title  to  a  house  situated  upon  the 
land  of  another  by  simply  establishing  a  purchase  from  some  third  per- 
son.    Griffin   v.   Kansdell,    71   Ind.,   440,   442    (1880).] 

[If  trade  fixtures  are  left  in  a  building  at  the  time  the  tenancy  ceases, 
neither  the  tenant,  nor  a  purchaser,  nor  a  chattel  mortgagee  of  such 
fixtures  has  the  right  to  remove  them.  Fuller  v.  Brownell,  48  Neb.,  145, 
150   (1896);   Sweet  v.  Myers,  3  S.  Dak.,  324,  330   (1892).] 

[Where  the  Code  gives  a  mechanics'  lien  upon  the  improvements  made 
by  a  lessee,  and  pro\'ides  for  their  removal,  it  extends  only  to  such  im- 
provements as  the  lessee  has  a  right  to  remove.  Stenberg  v.  Liennemann, 
20  Mont.,  457   (1897).] 

[A  liquidator  has  no  more  power  to  remove  things  affixed  to  the  soil 
than  the  tenant  has.  Pender  v.  Bathgate  Oil  Co.,  (1887)  24  Scot.  Law 
Bep.,  519,  520.] 

iSee  Hanrahan  v.  O'Eeilly,  102  Mass.,  203  (1869),  See,  also,  Wall  v. 
Hinds,  4  Gray,  271  (1885)  ;  C.  C.  La.,  Art.  2697,  quoted  post  in  this 
chapter.  [Honeyman  v.  Thomas,  25  Ore.,  539,  542  (1894) ;  Hackett  v. 
Bennett,  12  N.  S.  W.,  Sup.  Ct.,  327,  332  (1874);  see,  also,  Powell  v. 
Bergncr,  47  111.  App.,  33,  35  (1893);  Roth  v.  ColUns,  109  Iowa,  501, 
503  (1899);  Gulf  &c.,  R 'y  Co.  v.  Dunman,  85  Tex.,  176,  182  (1892); 
Sherrick  v.  Cotter,  28  Wash.,  25  (1902).  But  see  Updegraff  v.  Lesem, 
15  Colo.  App.,  297,  305  (1900),  where  it  is  said  that  "it  does  not 
matter  much  how  firmly  the  articles  may  be  attached  to  the  land."] 

2  In  O'Brien  v.  Kusterer,  27  Mich.,  289  (1873),  a  bar,  bar-fixtures, 
cupboard,  bowling-allcy-ways  and  racks,  put  down  by  a  tenant  for  years, 
and  attached  to  the  building  and  made  a  part  of  the  realty,  so  far  aa 
mechanical  annexation  could  make  them  so,  the  bowling-alleys  connected 
with  the  floor  and  sleepers  in  a  very  substantial  manner,  were  held  to  be 
permanent  fi.xtures  annexed  to  the  freehold  so  as  to  belong  to  the  land- 
lord, and  not  to  be  removable  by  the  tenant's  vendees;  and  the  tenant's 
sale  of  such  fixtures  as  personality,  and  taking  back  a  chattel  mortgage 
upon  them,  could  not  invest  him  with  any  new  right  as  against  tlio  land- 
lord, unless  he   was  shown  in   some   satisfactory  way  to  have   waived   or 

10  145 


•  94  THE  LAW  OP  FIXTURES.  [CHAP.  IV. 

reliuquishod  his  rights  derived  from  such  annexation,  or  assented  to  their 
being  dealt  with  by  the  tenant  as  personalty  or  things  removable.  The 
particular  manner  of  annexation  not  stated  in  the  report,  further  than 
above.  See,  also,  Talbot  v.  Whipple,  14  Allen,  177  (1867).  [Holmes 
V.  Standard  Pub.  Co.,  55  Atl.,  1107,  1108  (N.  J.  Ch.,  1903);  see,  also, 
McCall  v.  Walter,  71  Ga.,  287,  290  (1883);  Landenberger  v.  Berges,  15 
Phila,,   96,   97    (1882);    Kendall  Mfg.   Co.   v.  Eundle,   78  Wis.,   150,   158 

(1890).] 

[Track,  bridges,  buildings,  tanks,  turn-tables,  stationary  engines,  track- 
scales,  etc.,  built  by  a  corporation  which  had  leased  a  railroad  from  the 
state,  are  not  removable,  whether  substituted  for  former  structures,  or 
in  addition  thereto.  Western  &  Atlantic  R.  R.  Co.  v.  State,  14  L.  R.  A., 
438,  451  (Ga.  Spec.  Com.,  1891).  See,  also,  as  to  engines  and  boilers, 
Kaestner  v.  Day,  65  111.  App.,  623,  630  (1895);  Barker  v.  Cincinnati 
Brick  Co.,  4  Ohio  Dec,  270,  271  (1896);  and  Brownell  v.  Fuller,  60 
Neb.,  558,  565  (1900).  In  the  latter  case  a  portable  engine  and  boiler 
had  been  placed  in  an  alley.  In  Hughes  v.  Towers,  16  Up.  Can.  C.  P., 
287  (1865),  new  parts  had  been  added  to  an  engine,  and  the  old  parts 
adapted  thereto.  As  to  a  steam  heating  plant,  substituted  for  a  prior 
one,  see  Pond  Co.  v.  O 'Conner,  70  Minn.,   266,  268   (1897).] 

[A  brick  baker's  oven  is  not  removable.  Collamore  v.  Gillis,  149  Mass., 
578,  581  (1889)  ;  see,  also,  Gauggel  v.  Ainley,  83  111.  App.,  582  (1898), 
as  to  an  oven  and  frame  sheds.] 

[So,  as  to  an  ice  plant  consisting  of  buildings,  engines,  boilers  and 
machinery  bolted  to  masonry.  Menger  v.  Ward,  28  S.  W.,  821,  824 
(Texas  Civ.  App.,  1894).] 

[So,  as  to  a  carriage-house,  carving-room,  cupboard,  gas-pipes,  registers, 
slates,  iron  sink,  hall-floors,  summer  dining-room,  store-room,  hitching- 
posts,  fence,  double  glass  doors,  tin  spouting  in  a  hotel.  Kenney  v.  Mat- 
lack,  12  Atl.,  589   (Pa.,  1888).] 

[So,  as  to  cement  flooring,  in  a  cellar,  stone  steps,  brass  railing  and 
the  tiled  walls  and  ceiling  of  an  entrance  leading  thereto,  partitions  of 
wood,  glass  and  cement,  water-closets,  urinals,  wash-basins,  sewers,  iron 
columns  supporting  the  floor,  bar  and  counters  imbedded  in  cement,  refrig- 
erators, and  gas-pipe.     Felcher  v.  McMillan,  103  Mich.,  494,  498    (1894).] 

[So,  as  to  wainscoting,  veneering,  partitions  and  doors.  Matthiesen  v. 
Arata,  32  Ore.,  342,  347   (1897).] 

[So,  as  to  a  stairway.  Bovet  v.  Holzgraft,  5  Tex.  Civ.  App.,  141,  144 
(1893).] 

[See  Bedlow  v.  New  York  Dock  Co.,  112  N.  Y.,  263,  282  (1889),  as  to 
a  pier.] 

[Fixtures  which  are  substituted  for  or  replace  fixtures  received  by  the 
tenant  from  his  landlord,  are  not  removable  by  him.  Ex  parte  Hemen- 
way,  2  Lowell,  496,  498  (U.  S.  Dist.  Ct.,  Mass.,  1876)  ;  Felcher  v.  Mc- 
Millan, 103  Mich.,  494,  499  (1894);  Ashby  v.  Ashby,  59  N.  J.  Eq.,  536 
(1900);  Hay  v.  Tillyer,  14  Atl.,  18,  19  (N.  J,  Ch.,  1888);  Eichardsoq 
V.  Ranney,  2  Up.  Can.  C,  P.,  460.] 

14a 


CHAP.  IV,]  TRADE  FIXTURES,  AND  MIXED  CASES. 


^95 


among  which  there  exists  some  diversity  and  even  contrariety 
of  opinion.  There  can  probably  be  no  general  rule  laid  down 
for  the  government  of  all  cases,  but  each  case  should  be  decided 
on  its  own  facts,  aFit  arises,^  the  question  being  in  all  cases 
a  mixed  one  of  law  and  fact.^  There  have  been,  however,  some 
general  discussions  on  the  subject,  and  some  points  decided 
that  may  furnish  light  towards  the  decision  of  future  cases.  In 
Whitehead  v.  Bennett,"'  per  Kindersley,  V.  C,  a  distinction  was 
♦taken  between  ordinary  trade  fixtures  and  buildings  built  [*95] 
exclusively  for  trade,  and  it  was  held,  in  a  question  arising  be- 
tween landlord  and  tenant,  that  buildings  erected  solely  for  pur- 
poses of  trade,  viz. :  a  bleaching-house,  a  dye-house,  an  engine- 
house,  a  lime-house,  and  a  building  erected  upon  cross  beams 
resting  upon  two  walls  and  forming  a  passage,  said  buildings 
being  built  of  brick,  with  brick  foundations  let  into  the  soil,  and 
incapable  of  removal  in  an  integral  condition,  could  not  be 
removed  by  the  tenant,  though  it  was  admitted  that  things  in 
the  nature  of  machinery,  engines,  or  plant,  or  things  substantial 
and  solid,  such  as  vats  and  utensils,  to  which  the  buildings 
were  in  some  sense  accessory,  were  clearly  removable  as  between 
landlord  and  tenant.     The  question  was  said  to  turn  upon  the 

2  See  Brennan  v.  Whitaker,  15  Ohio  St.,  451  (1864);  Steward  v.  Lombe, 
1  B.  &  B.,  506  (1820).     [Thomas  v.  Wagner,  131  Mich.,  601,  603  (1902).] 

[Until  there  is  evidence  tending  to  prove  the  several  elements  by  which 
the  ownership  of  fixtures  would  be  in  the  tenant,  he  has  no  right  to  re- 
quire the  court  to  leave  that  question  to  the  jury.  Leman  v.  Best,  30 
111.  App.,  323,  326   (1888).] 

[Where  the  written  lease  is  silent,  parol  evidence  is  admissible  tending 
to  show  what  was  the  final  disposition  to  bo  made  of  the  improvements. 
Hammond  v.  Martin,  15  Tex,  Civ.  App.,  570,  573    (1897).] 

[Real  evidence  as  to  the  manner  of  annexation,  that  is,  viewing  the 
premises,  is  more  satisfactory  than  oral  evidence  in  reference  thereto. 
Gauggel  v.  Ainley,  83  111.  App.,  582,  587  (1898).] 

8  See  Steward  v.  Lombe,  1  B.  &  B.,  506  (1820);  Trustees  v.  Grubb,  19 
Leg.  Int.,  157;  5  Phila,  R.,  41  (1862);  Grand  Lodge  v.  Knox,  27  Mo., 
315  (1858);  Fortman  v.  Goepper,  14  Ohio  St.,  562  (1863);  Campbell  v. 
O'Neill,  64  Pa.  St.,  290  (1870).  [Straight  v.  Mahoney,  16  Pa.  Super., 
155,  158  (1901);  Pronguey  v.  Gurney,  36  Up.  Can.  Q.  B.,  53,  77  (1874); 
see,  also,  ante,  p.  •24.] 

[A  building  erected  by  a  tenant  for  purposes  of  trade  is  prima  fade 
a  trade  fixture.    Gray  v.  McLennon,  3  Man,,  337  (1886).] 

♦  27  L.  J.   (N.  S,),  Ch.,  474   (1858);   s.  c,  6.  W.  R.,  351. 

147 


•96  THE  T,AW  OP  FIXTURES.  [CHAP,  IV. 

nature  of  these  particular  buildings  as  to  being  capable  of  be- 
ing removed  in  an  integral  condition;  and  the  rule  was  laid 
down  that  trade  fixtures,  to  be  removable,  must  be  either  capa- 
ble of  being  removed  bodily,  or  taken  to  pieces  and  put  up 
again,  so  as  to  be  identically  what  they  were  before.  The  case 
of  the  building  was  stated  to  be  that  of  the  removal  of  mate- 
rials simply,  while  the  other  case  stated  (that  of  an  engine), 
was  that  of  taking  to  pieces  and  restoring  to  their  former  state.^ 
However,  on  the  other  hand  it  was  held  in  Van  Ness  v. 
Pacard,-  that  a  wooden  building  two  stories  high  in  front, 
with  a  shed  of  one  story  and  a  cellar  of  stone  or  brick,  the 
principal  building  resting  upon  this  stone  or  brick  founda- 
tion, and  having  a  brick  chimney,  erected  by  a  tenant  for 
years,  who  was  a  carpenter  by  trade,  with  a  view  to  carrying 
on  the  business  of  a  dairyman  and  for  the  residence  of  his 
family  and  servants  engaged  in  his  said  business,  in  which 
[*96]  *house  he  also  carried  on  carpenter  work,  was  a  trade 
fixture  which  might  be  pulled  down  and  removed  by  the  tenant. 
In  delivering  the  opinion  of  the  court,  Story,  J.,  observed  that 
"the  question,  whether  removable  or  not,  does  not  depend 
upon  the  form  or  size  of  the  building,  whether  it  has  a  brick 
foundation  or  not,  or  is  one  or  two  stories  high,  or  has  a  brick 
or  other  chimney.  The  sole  question  is  whether  it  is  designed 
for  purposes  of  trade  or  not.    A  tenant  may  erect  a  large  as 

1  The  following  cases  were  cited:  Elwes  v.  Maw,  3  East,  38  (1802) 
Poole's  Case,  1  Salk.,  368  (1703);  Lawton  v.  Lawton,  3  Atk.,  13  (1743) 
Dudley  v.  Warde,  Ambl.,  113  (1751)  ;  Penton  v.  Eobart,  2  East,  88  (1801) 
s.  c,  4  Esp.,  33.  In  Whitehead  v.  Bennett  (supra),  the  dicta  of  Lord 
Ellenborough  in  Elwes  v.  Maw  (supra),  were  explained  as  referring  only 
to  the  particular  case  there  in  question.  See,  also,  Ferard  Fixt.,  48;  2 
Smith  Lead.  Cas.  (7th  Am.  ed.),  258;  Kutter  v.  Smith,  2  Wall.,  491, 
497  (1864);  Haflick  v.  Stober,  11  Ohio  St.,  482  (1860);  Eeid  v.  Kirk, 
12  Eich.  Law,  54   (1859);   Cannon  v.  Hare,  1  Tenn.  Ch.,  22,  35   (1872). 

[A  four  story  building  resting  upon  mud-sills  imbedded  in  the  land, 
would  not,  in  the  absence  of  agreement,  be  removable.  West  Coast 
Lumber   Co.    v.    Apfield,   86   Cal.,    335    (1890).] 

[A  substantial  one  story  frame  building  twenty-three  by  forty-five  feet, 
•was  built  upon  sills  eight  by  ten  inches  nailed  to  twenty-four  posts  in 
three  rows  let  into  the  ground  two  and  one-half  to  three  feet,  and  ten 
inches  in  diameter.  Held,  not  a  trade  fixture.  Burkhardt  v.  Hopple,  6 
Ohio    Dec,  127,  130    (1897).] 

2  2  Pet.,  137   (1829). 

148 


CHAP,  IV.]     TRADE  FIXTURES,  AND  MIXED  CASES.  *96 

well  as  a  small  messuage,   or  a  soap  boilery  of  one  or  two 
stories  high,  and  on  whatever  foundations  he  may  choose.  "^ 

On  the  whole,  the  tendency  of  modern  authority,  at  least  in 
the  United  States,  is  believed  to  be  adverse  to  the  rule  laid 
down  in  Whitehead  v.  Bennett  {supra),  that  trade  fixtures  (or 
at  least  trade  fixtures  in  the  nature  of  buildings)  to  be  remov- 
able must  either  be  capable  of  being  bodily  removed,  or  taken 
in  pieces,  and  put  up  again,  so  as  to  be  identically  what  they 
were  before  such  removal."*     Perhaps,  however,  on  the  other 

3  The  remainder  of  the  quotation  is  as  follows :  "In  Lawton  v.  Lawton, 
3  Atk.  E.,  13,  Lord  Hardwicke  said  *  *  *  that  it  made  no  difference 
whether  the  shed  of  the  engine  be  made  of  brick  or  stone.  In  Penton 
V.  Eobart,  2  East 's  E.,  88,  the  building  had  a  brick  foundation  let  into 
the  ground,  with  a  chimney  belonging  to  it,  upon  which  there  was  a  super- 
structure of  wood.  Yet  the  court  thought  the  building  removable.  In 
Elwes  V.  Maw,  3  East's  E.,  37,  Lord  Ellenborough  expressly  stated,  that 
there  was  no  difference  between  the  building  covering  any  fixed  engine, 
utensils,  and  the  latter.  The  only  point  is,  whether  it  is  accessory  to  carry- 
ing on  the  trade  or  not.  If  hona  fide  intended  for  this  purpose,  it  falls 
within  the  exception  in  favor  of  trade.  The  case  of  the  Dutch  barns, 
before  Lord  Kenyon  [Dean  v.  Allalley,  3  Esp.,  11;  Woodfall's  Land,  and 
Ten.  219],  is  to  the  same  effect."  The  rule  laid  down  in  Van  Ness  v. 
Pacard,  was  quoted  approvingly  in  Cromie  v.  Hoover,  40  Ind.,  49,  56 
(1872),  with  reference  to  buildings  erected  for  storing  ice,  to  be  sold 
as  merchandise;  also  in  White  v.  Arndt,  1  Whart.,  94  (1835);  Lamphere 
V.  Lowe,  3  Neb.,  136  (1873).  See,  also,  Powell  v.  McAshan,  28  Mo.,  71 
(1859);  Kutter  v.  Smith,  2  Wall.,  495  (1864).  [See  Wiggins  Ferry  Co.  v. 
Ohio  &  Miss.  E'y  Co.,  142  U.  S.,  396,  416  (1892);  Kuhlman  v.  Meier,  7 
Mo.  App.,  260  (1879)  ;  Sampson  v.  Camperdowu  Mills,  64  Fed.,  939,  942 
(U.  S.  C.  C,  S.  C,  1894).] 

♦See  dicta  in  Penton  v.  Eobart,  2  East,  88  (1801);  Elwes  v.  Mav,  3 
East,  38  (1802);  White  v.  Arndt,  1  Whart.,  94  (1835);  1  Wash.  Eeal. 
Prop.,  114.  [Ward  v.  Earl,  86  111.  App.,  635,  641  (1899);  Wittenmeyer  v. 
Board   of  Education,   10   Ohio   Circ.   Ct.,  119,   122    (1895).] 

[The  fact  that  a  removal  requires  the  taking  to  pieces  of  a  fixture,  is 
not  conclusive  against  the  tenant's  rights.  "The  landlord  is  not  affected 
by  an  injury  done  by  the  tenant  to  the  latter 's  own  property.  It  may  still 
be  valuable  to  the  tenant.  »  »  *  *  »  Identity  is  not  neces- 
sarily lost  by  demolition."  Baker  v.  McClurg,  90  111.  App.,  165,  173 
(1901),  aff'd   198   111.,   28    (1902).] 

In  Ex  parte  Bcntlcy,  2  M.  D.  &  Do  C,  591  (1842)  ;  s.  C,  6  .Tur.,  719, 
coke-ovens  constructed  of  iron  and  brick-work,  deeply  sunk  in  the  earth, 
and  not  removable  without  excavating  it,  were  admitted  to  be  trade  fix- 
tures. 

149 


*96  THE  LAW  OP  FIXTURES.  [CHAP.  IV. 

In  Moore  v.  Wood,  12  Abb.  Pr.,  393  (1860),  a  brick  chimney  sunk  three 
feet  into  the  ground  for  a  foundation,  and  which  could  not  be  removed 
without  being  taken  down,  was  held  to  be  removable  by  the  tenant  on  his 
being  dispossessed   of   the  premises   for  non-payment   of  the   rent. 

In  Dostal  v.  IMcCaddou,  35  Iowa,  318  (1872),  a  vault  built  for  banking 
uses  within  a  building  on  its  own  foundations,  within  which  was  placed 
while  being  built,  a  safe  too  large  to  be  removed  without  tearing  down  the 
vault,  was,  together  with  the  safe,  conceded  by  counsel  for  both  parties 
and  by  the  court  to  be  a  trade  fixture.  [See  Commissioners  of  Pitkin 
County  V.   Brown,   2   Colo.   App.,   473,   475    (1892).] 

In  Lawton  v.  Lawton,  3  Atk.,  13  (1743);  and  Dudley  v.  Warde,  1 
Ambl.,  113  (1751),  engine-houses,  whether  made  of  brick  or  wood,  in- 
tended to  cover  and  being  accessory  to  the  engines  of  a  colliery,  were 
considered  removable  as  between  executor  of  tenant  for  life  or  in  tail, 
and  the  remainderman  or  reversioner.  See,  also,  Davis  v.  Moss,  38  Pa. 
St.,  346  (1861);  White's  Appeal,  10  Pa.  St.,  252  (1849),  where  the  ques- 
tion related  also  to  the  stone  foundations  for  engine  and  boilers  erected  by 
a  tenant  for  years. 

In  Penton  v.  Eobart  (supra),  a  wooden  varnish-house  set  upon  a  brick 
foundation  let  into  the  ground  with  a  chimney  belonging  to  it,  was  al- 
lowed to  be  pulled  down  by  the  tenant,  and  the  materials  removed. 

A  wooden  ice  house,  of  a  capacity  of  2,000  tons  and  upwards  of  ice, 
built  upon  leased  land  for  the  storage  of  ice  for  sale  in  the  business  of 
the  tenant,  with  no  stone  or  other  foundation  under  the  sills,  except  a 
wooden  block  under  each  corner,  the  sills  being  set  into  the  ground  upon 
a  layer  of  charcoal,  at  depths  of  from  six  inches  to  three  feet,  and  banked 
up  with  soil  on  the  outside  to  prevent  the  circulation  of  air  under  them,  is 
a  tenant's  fixture,  and  may  be  pulled  down  and  removed.  Antoni  v. 
Belknap,  102  Mass.,  193  (1869).  See,  also,  Cromie  v.  Hoover,  40  Ind., 
49,  56   (1872).     [Handforth  v.  Jackson,  150  Mass.,  149   (1889).] 

A  building  described  as  a  "shed,  stable,  store-room  and  barn,"  being 
a  wooden  frame  building  on  a  side  hill,  with  a  basement;  the  foundation 
at  the  ends,  a  high  stone  wall  laid  in  mortar,  and  the  front  of  the  base- 
ment being  frame  work,  the  frame  work  of  the  building  extending  down 
into  the  basement,  and  the  building  not  being  capable  of  being  removed 
without  being  taken  down,  the  purpose  and  use  of  the  building  not  dis- 
tinctly appearing,  unless  it  might  be  inferred  that  it  was  used  in  con- 
nection with  the  tavern  mentioned  below,  such  building  having  been 
erected  by  the  tenant,  a  tavern  keeper,  was  considered  to  be  removable  as 
a  trade  fixture,  if  used  by  the  tenant  in  connection  with  the  tavern.  Du- 
bois V.  Kelly,  10  Barb.,  496   (1851). 

See,  also  (6  Law  Mag.,  96),  opinion  of  Sir  John  Richardson,  that 
brick  kilns  constructed  chiefly  of  brick  and  resting  upon  the  ground,  and 
sheds  of  brick  covered  with  tiles,  open  at  the  sides,  and  for  the  most  part 
resting  upon  brick  pillars,  erected  by  a  tenant  from  year  to  year  to  make 
brick   on   the   demised   premises,   are   removable   as   trade   fixtures. 

[A  brick  building  thirty-two  by  one   hundred  and  twenty-five   feet,  a 

150 


CHAP.   IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *97 

*haiid,  the  rule  stated  in  Van  Ness  v.  Paeard,  that  the  sole  [*97] 
question  is,  whether  designed  for  purposes  of  trade  or  not,  may 
not  in  all  cases  be  strictly  correct,  as  an  annexation  made  by  a 
tenant  for  purposes  of  trade  may  possibly  be  so  constructed  as 
*to  furnish  satisfactory  evidence  that  the  annexation  was  [*98] 
intended  to  be  permanent,  and  as  an  accession  to  the  realty. 
But  if  the  annexation  is  made  solely  for  purposes  of  trade,  and 
is  not  intended  to  be  made  a  permanent  accession  to  the  realty, 
of  which  fact  the  relation  of  landlord  and  tenant  existing 
between  the  parties,  and  the  fact  that  it  is  annexed  for  trade 
purposes  only,  would  ordinarily  seem  to  be  satisfactory  evi- 
dence, then  it  would  seem  to  be  the  better  opinion,  that  the 
right  of  removal  is  preserved.  However,  the  mode  of  annex- 
ation, and  the  extent  to  which  united,  whether  capable  of  being 
taken  down  and  removed  integre,  salve  et  commode,  without 
substantial  injury  to  the  realty  or  itself,  seem  all  to  be  im- 
portant considerations  in  determining  this  question  of  inten- 
tion, no  one  test  alone  being  sufficient  to  determine  all  cases.^ 

one  hundred  horse  power  engine  and  machinery  used  in  manufacturing 
paper  were  held  to  be  trade  fixtures  and  removable  by  the  tenant,  in 
Belvin  V.  Ealeigh  Paper  Co.,   123  N.   C,   138,   144.] 

[A  three  story  brick  flouring-mill  upon  a  stone  foundation  imbedded  in 
the  soil,  was,  in  Gordon  v.  Miller,  28  Ind.  App.,  612,  617  (1901),  said 
to  be  a  trade  fixture  as  between  the  tenant  and  a  chattel  mortgagee.] 

[A  brick  railroad  station,  forty-five  by  one  hundred  feet,  is  a  trade 
fixture.  Carr  v.  Georgia  K.  E.,  74  Ga.,  73,  81  (1884).  See  Western  N.  C. 
R.  R.  V.  Deal,  90  N.  C,  110,   112    (1884).] 

[A  warehouse  is  a  trade  fixture.  Evans  v,  McLucas,  15  S.  C,  67,  70 
(1880).     See,  also,  Walton  v.  Wray,  54   Iowa,   531,  534    (1880).] 

[In  Brown  v.  Reno  Power  Co.,  55  Fed.,  229  (U.  S.  C.  C,  Nev.,  1893), 
buildings  upon  solid  stone  foundations,  containing  dynamos  and  an  engine 
and  boiler,  were  held  to  be  trade  fixtures.] 

[A  bunk  house  and  boarding  house  at  a  mine  are  trade  fixtures.  Couch 
V.  Welsh,  24  Utah,  36,  47   (1901).] 

[That  where  erections  are  required  to  bo  substantial  in  order  to  be 
useful,  the  fact  that  they  are  very  substantially  built  has  no  weight,  see 
Conrad  v.  Saginaw  Min.  Co.,  54  Mich.,  249,  254   (1884).] 

iSee  Wall  v.  Hinds,  4  Gray,  271  (1885);  Talbot  v.  Whipple,  14  Allen, 
177  (1867).  Where  the  trade  fixture  is  of  such  a  nature,  and  so  an- 
nexed that  it  cannot  bo  removed  without  being  entirely  or  substantially 
destroyed,  or  receiving  %'ery  serious  injury — this  fact  would  seem  to  furnish 
evidence  nearly,  if  not  quite,  conclusive  of  an  intention  to  dedicate  it  to 
the  realty.     See  TeaflF  v.  Hewitt,  1  Ohio  St.,  534   (1853).     But  with  the 

151 


♦99  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

[*99]  *It  seems  clear,  however,  that  buildings  moved  or  erected 
upon  demised  premises  by  a  tenant  for  years  principally  for 
the  purpose  of  trade,  or  business  in  the  nature  of  trade,  and 
capable  of  removal  in  an  integral  condition,  may  be  removed, 
by  such  tenant,  as  trade  fixtures.^ 

case  of  buildings  for  trade  purposes,  whose  materials  would  be  valuable 
for  other  purposes,  the  case  seems  different,  and  a  distinction  in  this 
respect  should  be  made  between  them.  This  subject  has,  however,  been 
very  little  discussed  by  the  courts. 

Perhaps  it  may  be  said  that  the  main  question  is  one  as  to  the  intention 
with  which  the  annexation  was  made,  and  that  the  various  circumstances 
above  mentioned  arc  principally  valuable  as  evidence  of  such  intention. 
In  Talbot  v.  Whipple  (supra),  a  wooden  building  of  large  dimensions 
used  as  a  dry-house,  so  constructed  that  it  could  not  be  removed  from  the 
premises  without  a  change  in  its  structure  at  great  cost,  built  on  stone 
foundation,  partly  natural  and  partly  artificial,  to  which  it  was  fastened 
by  iron  bolts,  and  having  a  brick  furnace  and  chimney  resting  on  a  base 
in  the  ground;  also,  a  machine  called  a  calender,  weighing  about  six  tons, 
placed  upon  a  solid  foundation  of  stone  and  mortar  in  the  cellar  of  the 
building,  and  extending  into  the  second  story,  with  the  first  floor  fitted 
closely  around  the  bottom  of  its  frame,  and  braced  and  bolted  to  various 
parts  of  the  building,  and  which  could  not  be  removed  without  being 
taken  to  pieces,  taking  up  the  floor,  and  cutting  into  the  walls  and  side 
of  the  building,  were  regarded  by  the  court,  not  as  movable  chattels,  but 
as  belonging  to  that  class  of  fixtures  which,  if  removable  at  all  (which 
was  not  decided,  though  it  seems  to  have  been  intimated  that  they  were 
not  removable),  must  be  removed  by  the  tenant  during  the  term,  and  if 
suffered  to  remain  thereafter  belong  to  the  landlord  as  a  part  of  the 
freehold. 

[See  Holmes  v.  Standard  Pub.  Co.,  55  Atl.,  1107,  1108  (N.  J.  Ch., 
1903).] 

[A  tenant  is  presumed  not  to  intend  to  permanently  enhance  the  value 
of  another's  estate  by  buildings  and  fixtures  which  could  be  removed 
during  his  term  without  injury.  Cullers  v.  James,  66  Tex.,  494,  498 
(1886).] 

[An  oven  which  cannot  be  severed  without  being  reduced  to  a  mere 
mass  of  crude  materials,  is  not  removable.  Collamore  v.  Gillis,  149  Mass., 
578  (1889).] 

2  See  the  authorities  hereinbefore  cited  in  this  chapter ;  also,  Holmes 
V.  Trempcr,  20  .John.,  29  (1822),  holding  a  cider  mill,  erected  by  a  tenant, 
to  be  removable  as  against  the  landlord.  [See  Security  Loan  Co.  v. 
Williamette  Mills  Co.,  99  Cal.,  636,  640  (1893);  Howe's  Cave  Ass'n  v, 
Houck,  73  Supr.  Ct.  (66  Hun),  205  (N.  Y.,  1892)  ;  Meader  v.  Brown,  5 
N.  Y.  St.  Eep.,  839,  840  (1886);  7?e  City  of  Buffalo,  1  N.  Y.  St.  Eep., 
742,  748  (1886) ;  Lewis  v.  Ocean  Pier  Co.,  125  N.  Y.,  341,  346  (1891).] 

152 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *99 

Respecting  the  injury  done  to  the  premises  by  the  removal 
of  fixtures,  it  has  been  laid  down  that  the  premises  must  be  in 
as  good  plight  and  condition  after  the  removal  as  they  were 

So,  where  a  tenant  of  a  hotel  erected  a  ball  room  thirty  by  sixty  feet, 
and  one  story  high,  not  attached  to  any  other  building,  but  having  its  sills 
resting  on  stone  pillars  sunk  in  the  ground  from  one  to  two  feet,  but  in 
no  manner  attached  thereto  except  by  the  weight  of  the  building,  the  mode 
of  annexation  evincing  no  design  of  attaching  it  permanently  to  the 
freehold,  held,  to  be  a  trade  fixture  removable  by  the  tenant,  and  that 
the  right  of  removal  passed  to  the  vendee  on  a  sale  to  enforce  a  me- 
chanics' lien.  Ombony  v.  Jones,  19  N.  Y.,  234  (1859);  affirming  s.  C, 
21  Barb.,  520.  See,  also,  Lanphere  v.  Lowe,  3  Neb.,  131  (1873)  ;  Doty  v. 
Gorham,  5  Pick.,  487  (1827)  ;  Cannon  v.  Hare,  1  Tenn.  Ch.,  22,  36  (1872)  ; 
Beers  v.  St.  John,  16  Conn.,  322  (1844) ;  Dean  v.  Allalley,  3  Esp.,  11 
(1799).     [See  Firth  v.  Eowe,  53  N.  J.  Eq.,  520,  524   (1895).] 

[A  building  resting  upon  planks  laid  upon  the  ground,  sided  with 
rough  siding,  and  covered  with  a  tin  roof,  rudely  constructed  at  a  cost 
of  one  hundred  and  fifty  dollars,  and  used  by  a  tenant  for  storing  im- 
plements which  he  was  engaged  in  selling,  is  a  trade  fixture.  Sagar  v. 
Eckert,  3  111.  App.,  412  (1879).] 

[A  wooden  building  twenty  feet  square,  upon  mud-sills  resting  upon 
short  posts,  is  a  trade  fixture.  Macdonough  v.  Starbird,  105  Cal.,  15 
(1894).] 

[A  boiler  house,  and  cheap  dwellings,  some  upon  dry  stone  walls  and 
some  upon  posts,  erected  for  the  exclusive  purpose  of  carrying  on  mining 
operations,  and  removable  without  material  disturbance  of  the  land,  are 
trade  fixtures.     Conrad  v.  Saginaw  Min.  Co.,  54  Mich.,  249    (1884).] 

[A  building  fifteen  by  thirty,  costing  seven  hundred  dollars,  and  resting 
upon  stone  posts  sunk  into  the  ground,  is  a  fixture  which  the  tenant  has 
a  right  to  remove.     Melver  v.  Estabrook,  134  Mass.,  550    (1883).] 

Where  a  tenant  for  years  takes  down  an  old  and  ruinous  shop  on  the 
demised  premises,  and  erects  a  new  one  for  the  same  purpose,  covering 
its  foundation  and  extending  beyond  it,  the  use  by  the  tenant  of  a  portion 
of  the  materials  of  the  old  shop  on  the  premises  in  the  construction  of 
the  new  one,  will  not,  in  law,  vest  the  title  of  the  latter  in  the  owner  of 
the  former,  if  such  new  building  is  a  different  and  distinct  one  from  the 
old  shop,  and  not  the  old  one  repaired  or  reconstructed.  The  title  to  the 
new  shop  thus  turns  on  the  question,  whether  it  is  substantially  and  es- 
sentially the  same  shop  as  the  old  one.  Beers  v.  St.  John  (supra).  See 
Smith  V.  Render,  27  L.  J.  Ex.,  83  (1857). 

[A  tenant,  without  permission,  removed  a  shed  at  the  rear  end  of  a 
building,  to  somo  other  property  of  the  landlord,  and  erected  an  addition 
in  its  place.  The  addition  was  built  "n  jiilcs  driven  into  the  ground, 
and  annexed  to  the  originnl  building  by  nails.  It  was  thirty  by  thirty- 
two  fpot,  two  stories  high,  and,  when  detached,  left  the  end  of  the 
original    building    and    of    itself    exposed    to    the    weather.      The    original 

153 


•99  THE  L.UV  OF  FIXTURES.  [CHAP.  IV. 

before  auuexation.^  While  it  is,  doubtless,  true  that  in  the 
exercise  of  the  right  of  removal,  the  tenant  must  do  as  little 
damage  as  possible,  and  that  for  any  unnecessary  damage^  he 

buikliug  aud  the  addition  were  used  together  as  a  hardware  store.  Held, 
not  a  trade  fixture.     Fortescue  v.  Bowler,  55  N.  J.  P^q.,  741,  742   (1897).] 

[Au  addition  erected  by  a  tenant  for  a  blacksmith's  forge,  a  part  of 
the  wall  of  the  old  shop  being  torn  down,  is  not  a  trade  fixture.  Weller 
V.   Everitt,   25   Vict.,   683    (1900).] 

3  See  Tayl.  Land.  &  Ten.,  §  550;  Whiting  v.  Brastow,  4  Pick.,  311 
(1826),  See,  also,  Seeger  v.  Pettit,  77  Pa.  St.,  437,  441  (1875),  per 
Paxson,  J.;  Ferard  Fixt.,  *46,  88.  [Leman  v.  Best,  30  111.  App.,  323,  325 
(1888)  ;  Ambs  v.  Hill,  10  Mo.  App.,  108,  109   (1881),  13  Mo.  App.,  585.] 

[In  Schaefer-Meyer  Brew.  Co.  v.  Mey€r,  19  Ky.  Law  Eep.,  411,  412 
(1897),  a  mechanics'  lien  was  allowed  for  a  recess  front  made  of  oak 
wood  and  chipped  glass,  the  old  front  to  be  replaced  by  the  lienor,  in  the 
condition  in  which  it  was  when  the  tenant  took  possession.] 

[Where  a  building  is  erected  in  accordance  with  plans  submitted  to 
lessees,  and  by  them  approved  as  suitable  for  use  as  a  bakery,  but  the 
only  material  difiference  of  construction  is  that  openings  are  left  in  the 
floors  for  the  erection  of  ovens,  such  ovens  when  built  by  the  lessees  are 
not  such  an  adaptation  to  the  purpose  of  the  realty  as  to  make  them  a 
part  thereof,  if  their  removal  will  not  injure  the  building,  but  only  leave 
the  original  openings  in  the  floors  which,  when  filled  in,  would  leave  the 
building  adapted  for  any  of  the  ordinary  uses  of  buildings  of  its  general 
character.  Baker  v.  McClurg,  96  111.  App.,  165  (1901),  aff'd  198  111., 
28    (1902).] 

["The  damage  to  the  wall  and  its  effect  on  the  question  of  fixtures 
is  got  over,  it  is  said,  because  the  defendant  rebuilt  the  wall  after  he  had 
pulled  down  his  addition  to  the  shop.  That  action  cannot  affect  the 
principle,  whieh  is  one  which  must  apply  to  everyone.  In  this  case  the 
defendant  had  the  means  to  repair  the  damage  done  to  the  plaintiff's 
house,  and  rebuild  the  wall,  but  this  principle  must  apply  to  all  persons 
whether  they  have  the  means  to  repair  or  not.  A  man  in  poor  circum- 
stances might  have  been  unable  to  afford  such  repairs,  and  his  case  must 
depend  upon  the  same  principle  of  law  as  the  case  of  a  man  who  can 
afford  to  make  the  repairs."    Weller  v.  Everitt,  25  Vict.,  683,  686  (1900).] 

[The  character  of  fixtures  is  not  changed  by  the  fact  that  by  reason 
of  their  size  it  was  not  necessary  to  paint  and  finish  the  wall  behind 
them.    Kimball  v.  Grand  Lodge  of  Masons,  131  Mass.,  59,  63  (1881).] 

[Where  holes  are  made  in  brick  walls  twenty  inches  thick  to  receive  the 
ends  of  a  structure  erected  by  a  tenant,  the  court  is  not  bound  to  con- 
sider nicely  whether  the  walls  remain  "as  strong  as  ever,"  where  it 
appears  that  the  removal  of  the  structures  would  not  leave  the  building 
in  as  good  condition  as  it  was  before  it  was  constructed.  Chase  v.  New 
York  Insulated  Wire  Co.,  57  111.  App.,  205,  210  (1894).] 
*See  Hare  v.  Horton,  5  B.  &  Ad.,  715  (1833), 

154 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *100 

would  be  liable  in  an  action^  yet,  as  was  observed  by  Campbell, 
C.  J.,  in  Martin  v.  Roe,^  "in  all  eases  of  this  kind,  injury  to  the 
♦freehold  must  be  spoken  of  with  less  than  literal  strict-  [*100] 
ness.  A  screw  or  a  nail  can  scarcely  be  drawn  without  some 
attrition ;  and  when  all  the  harm  done  is  that  which  is  unavoid- 
able to  the  mortar  laid  on  the  brick  walls  [the  articles  in  ques- 
tion in  this  case  being  hot-houses  of  frame  and  glass-work, 
resting  on  and  imbedded  in  mortar  on  brick  walls],  this  is  so 
trifling  that  the  law,  which  is  reasonable,  will  regard  it  as  none. 
Upon  any  other  principle,  the  criterion  of  injury  to  the  freehold 
would  be  idle."  In  Lawton  v.  Lawton,i  Lord  Hardwick  ob- 
served that  it  was  very  true,  in  general,  that  you  shall  not 
destroy  the  principal  thing  by  taking  away  the  accessary  to  it ; 
but  he  considered  the  walls,  in  this  instance,  as  not  the  principal 
thing,  they  being  only  sheds  to  prevent  any  injury  to  it,  the 
engine.  And  in  Dudley  v.  WardCj^  where  the  same  objection 
was  made,  he  made  the  same  answer,  observing  that  here  the 
engine  was  the  principal,  and  therefore  it  was  like  the  case  of 
coppers,  etc.;  you  cannot  take  them  away  without  spoiling  the 
walls;  yet  as  they  are  the  principal,  and  the  building  is  only  the 
better  to  enable  the  use  of  them,  they  may  be  removed.  The  case 
of  Foley  v.  Addenbroke,^  lays  down  a  very  reasonable  rule  on 
this  subject.  There  were  in  this  case,  on  the  part  of  the  lessee, 
covenants  in  the  lease  to  repair,  and  to  yield  up  in  repair,  cer- 
tain enumerated  things,  certain  things  therein  also  enumerated 

6  7  Ell.  &  Bl.,  237,  244  (1857).  See,  also,  Fcrard  Fixt.,  89;  Avery  v. 
Cheslyn,  3  Ad.  &  E.,  75  (1735),  where  the  question  was  left  to  the  jury, 
whether  the  fixed  cornice  could  be  removed  without  doing  substantial 
injury  to  the  house.  [Cubbins  v.  Ayres,  72  Tenn.,  329,  332  (1880); 
Pronguey  v.  Gurney,  36  Up.  Can.  Q.  B.,  53,  78  (1874)  ;  see,  also,  Bcrn- 
hcimer  v.  Adams,  70  App.  Div.,  114  (1902),  aff'd  175  N.  Y.,  472  (1903).] 

[In  Ward  v.  Earl,  86  111.  App.,  635  (1899),  the  fact  that  the  floor 
and  ceiling  are  slightly  damaged  by  the  removal  of  fixtures,  was  con- 
siflored   immaterial.] 

[In  Schacfor-Mcyor  Brewing  Co.  v.  Meyer,  19  Ky.  Law  Rep.,  411,  412 
(1897),  it  WHS  held  that  where  the  lessee  had  a  recess  front  of  oak  and 
glass  put  in,  it  was  removable  "without  material  injury"  under  the 
statute,  if  the  original  front  was  replaced.] 

13  Atk.,  13   (1743). 
2Ambl.,  113   (1751). 

8  13  M.  &  W.,  174  (1844);  s.  c,  14  L.  J.  Exch.,  169. 

155 


*101  THE  IxiVW  OF  FIXTURES.  [CHAP,  IV. 

being  excepted  from  the  operation  of  the  covenant  and  which 
the  lessee  (upon  the  lessor's  neglecting  to  purchase  said  articles, 
after  giving  a  certain  notice,  which  he  had  an  option  to  do) 
had  a  right  to  remove.  One  of  the  breaches  assigned  was,  that 
the  defendant  did  not  repair,  nor  leave  in  repair  at  the  end  of 
the  lease,  but  on  the  contrary,  part  of  the  furnaces,  etc.,  being 
other  than  the  iron- work,  etc.  (the  things  excepted  in  the  cov- 
enant), was  by  the  defendant  wrongfully  pulled  down  and  re- 
moved, and  the  furnaces,  etc.,  being  other  than  the  iron-work, 
etc.,  were  suffered  to  be  and  continue,  and  at  the  expiration  of 
[*101]  the  *lease  were  left  in  bad  order  and  condition  for  want 
of  repair.  To  this  breach  the  defendant  pleaded,  among  other 
things,  first,  a  special  traverse  of  the  breach,  and  averred  per- 
formance according  to  the  covenant.  Secondly,  that  the  said 
matters  and  things  in  that  breach  complained  of  were,  and  each 
and  every  part  thereof  was  done  and  occasioned  under,  by  virtue, 
and  in  an  execution  of  the  said  powers,  rights,  etc.,  granted  and 
reserved  to  the  defendant  in  and  by  the  lease.  The  plaintiff 
joined  issue  on  the  first  plea,  and  replied  to  the  second,  denying 
that  the  things  alleged  in  the  breach  were  done,  or  occasioned 
under  or  by  virtue,  or  in  execution  of  the  powers,  rights,  etc., 
granted  and  reserved  to  the  defendant  by  the  said  lease.  The 
injury  complained  of  being  caused  by  the  exercise  of  the  right 
of  removal  in  accordance  with  the  above  provisions,  there  seems 
in  this  respect  no  valid  distinction  between  this  case  and  a 
case  arising  under  the  exercise  of  the  ordinary  right  of  re- 
moval, and  the  observations  of  the  court  seem  equally  applicable 
to  both  cases.  The  court  held,  that  in  removing  certain  ma- 
chinery and  apparatus  fixed  in  brick-work  (as  boilers,  boiler- 
grates,  iron-work  and  castings  of  engine,  etc.),  and  which  the 
lessee  had  a  right  under  the  lease  to  remove,  with  respect  to 
damage  to  such  brick-work,  which  constituted  a  considerable 
portion  of  the  claim  made  by  the  plaintiff,  the  defendant  was 
not  bound  to  restore  the  brick-work  in  a  perfect  state,  as  if  the 
article  that  it  was  intended  to  protect,  or  support,  or  cover, 
was  there.  It  was  sufficient  for  the  defendant  to  exercise  his 
right  to  remove  what  the  lease  gave  him  authority  to  remove, 
and  in  doing  so,  to  remove  the  brick-work,  and  to  leave  it  in 
such  a  state  as  would  be  most  useful  and  beneficial  to  the 
lessors,  or  those  who  might  next  take  the  premises.    As  to  the 

156 


CHAP.   IV.  j  TRADE  FIXTURES,  AND  MIXED  CASES.  *102 

manner  in  which  such  right  of  removal  was  to  be  exercised,  the 
court  observed,  that  the  only  rule  they  could  lay  down  was,  that 
the  lessee  had  a  right  to  remove  the  articles,  doing  as  little  dam- 
age as  possible,  and  leaving  the  premises  in  a  state  fit  to  be 
used  for  a  similar  purpose  by  another  tenant.  But  that  if  any 
unnecessary  and  wanton  damage^  was  done,  and  the  premises 
left  in  such  a  state  as  not  to  be  conveniently  applicable  to  the 
same  purpose.  Ho  that  extent  the  plaintiff  would  be  [*102] 
entitled  to  recover  damages. 

In  determining  what  is  a  trade,  within  the  meaning  of  the 
rule  in  question,  the  word  is  not  used  in  a  strict  and  literal 
signification,  but  in  a  very  liberal  sense ;  and  has  been  extended 
to  include  various  occupations  having  an  affinity  or  resemblance 
to  trade,  though  hardly  included  in  the  usual  definitions  of  that 
term.  Thus,  the  keeper  of  an  inn  or  hotel,  in  some  sense,  exer- 
cises a  trade;  and  a  building  erected  by  him  on  the  demised 
premises  for  use  by  him  in  his  business,  as  a  ball  room,  has 
been  held  to  be  a  trade  fixture.^ 

iSee  Hare  v.  Horton,  5  B.  &  Ad.,  715   (1833). 

2  0mbony  v.  Jones,  19  N.  Y.,  234  (1859);  affirming  s.  C,  21  Barb., 
520.  See,  also,  Dubois  v.  Kelly,  10  Barb.,  496  (1851);  Wall  v.  Hinds, 
4  Gray,  256  (1855);  Van  Ness  v.  Pacard,  2  Pet.,  137  (1829);  Cannon  v. 
Hare,  1  Tenn.  Ch.,  22  (1872),  and  the  cases  hereinbefore  and  hereinafter 
cited  in  this  chapter,  with  reference  to  mixed  cases,  agricultural  fixtures, 
nurserymen,  etc.  In  Cannon  v.  Hare  (supra),  it  is  said  that  "it  is  prob- 
able, also,  that  the  exception  in  favor  of  buildings  erected  for  purposes 
of  trade,  will  be  limited  in  the  case  of  tenant  for  life  to  such  as  are 
erected  exclusively  for  purposes  of  trade  proper,  and  will  not  be  extended 
to  occupations  having  an  affinity  or  resemblance  to  trade.  In  the  ab- 
sence of  authority,  however,  this  can  only  be  considered  as  a  suggestion. ' ' 

[The  hotel  business  is  a  trade.  Gray  v.  McLennan,  3  Man.,  337  (1886); 
mining  is  a  trade.  Updegraff  v.  Lcsem,  15  Colo.  App.,  297,  306  (1900)  ; 
Springfield  Co.  v.  Cole,  130  Mo.,  1,  7  (1895).  That  operating  oil  and 
gas  wells  is  a  trade,  see  Siler  v.  Globe  Glass  Co.,  21  Ohio  C.  C,  284,  286 
(1900).] 

[Whether  the  proprietor  of  a  skating-rink  is  engaged  in  trade,  quaere. 
Howell  V.  Listonville  Kink  Co.,  13  Ont.,  476,  491    (1S86).] 

["We  see  no  distinction  in  principle  bot\vo(Mi  tlic  right  to  remove  a 
building  erected  by  a  lessee  for  school  i)urpi)HOH,  and  one  erected  by  a 
lessee  for  the  purpose  of  trade  or  other  business. ' '  Wittenmeycr  v. 
Board   of   Education,   10   Ohio   C.   C,    119,   124    (1895).] 

[Operating  a  railroad  leased  from  a  state  is  not  a  trade.  Western  & 
Atlantic  E.  R.  Co.  v.  State,  14  L.  T?.  A.,  438,  451  (Ga.  Spec.  Com.,  1891).] 

157 


•103  THE  LiVW  OP  FIXTURES.  [CHAP.  IV. 

In  some  cases,  hoAvever,  where  the  calling  is  exercised  solely 
with  reference  to  agricultural  operations,  or  as  a  means  of  en- 
joying the  benefit  of  the  inheritance,  an  exception  has  been 
made,  the  exercise  of  such  calling  not  being  considered  a  trade 
within  the  meaning  of  the  rule.  There  does  not  seem,  how- 
ever, to  be  any  valid  reason  for  this  exception;  and,  as  will  be 
shown  hereafter,  the  tendency  of  modern  judicial  opinion  in 
the  United  States  seems  opposed  to  such  distinction.^ 
[*103]  *Besides  the  cases  of  erections  made  upon  the  demised 
premises  by  tenants  solely  for  ordinary  trade  purposes,  uncon- 
nected with  and  independent  of  the  land  demised,  some  instances 
of  which  have  been  hereinbefore  given,  it  sometimes  happens 
that  the  erection  in  question  is  not  made  exclusively  for  trade 
purposes,  but  in  part  in  relation  to  trade,  and  in  part  for 
purposes  unconnected  with  trade,  constituting  what  have  usu- 
ally been  called  mixed  cases. 

3  This  subject  is  well  considered  in  the  valuable  work  of  Mr.  Ferard, 
on  page  60,  in  his  learned  criticism  of  the  case  of  Elwes  v.  Maw,  3  East, 
38  (1802),  from  which  we  quote  as  follows:  "But  the  rule  laid  down  in 
the  case  of  Elwes  v.  Maw,  appears  liable  to  further  objection,  on  account 
of  the  narrow  grounds  upon  which  it  rests.  It  is  universally  allowed 
that  the  privilege  in  respect  of  trade  is  not  confined  to  trade,  according 
to  the  strict  meaning  and  construction  of  the  statutes  of  bankruptcy.  It 
is  not  a  trading,  within  these  statutes,  to  work  a  coal  mine  [Wils.,  169; 
7  East,  447.  See  Stat.  6  G.  IV.,  c.  16]  ;  nor  for  an  occupier  of  land  to 
manufacture  cider  from  his  own  fruit  for  sale  [Id.  ib.,  and  see  1  T.  E., 
38,  per  Lord  Mansfield] ;  nor  to  manufacture  salt  for  sale  from  springs 
on  the  demised  premises,  [Ex  parte  Atkinson,  1  M.  D.  &  D.,  300.  See, 
also,  9  B.  &  C,  577,  590;  Paul  v.  Dowling,  1  M.  &  M.,  267.  But  by  the  late 
statute,  5  &  6  Vict.,  ch,  122,  sec.  10,  brickmakers,  lime-burners,  millers, 
etc.,  are  now  deemed  traders  within  the  bankrupt  laws.  So,  market 
gardeners.]  Yet  these  and  similar  occupations  are  held  to  entitle  a  tenant 
to  remove  utensils  and  erections  as  trade  fixtures.  [See,  also,  2  East,  91; 
7  Taunt.,  191] ;  and  it  would  seem  that  many  branches  of  husbandry 
have  a  strong  afiinity  to  trade  in  this  enlarged  sense  of  the  expression; 
for  instance:  the  dealings  of  a  farmer  in  stock,  wool  and  bark,  etc.,  the 
making  of  charcoal,  growing  and  preparing  flax,  or  the  manufacturing 
of  hoops,  which,  in  some  of  the  counties  of  England  is  a  considerable 
source  of  the  profits  of  a  farm.  In  this  view  of  the  subject,  the  making 
of  cheese  on  a  farm,  or  the  preparing  of  grain  for  market  by  means  of 
a  threshing-machine,  may  with  equal  reason  be  considered  a  manufacture 
or  a  species  of  trade,  as  the  making  of  cider  from  the  produce  of  an 
orchard  annually  renewing."  See  the  subject  further  considered  (post), 
under  the  head,  Agricultural  Fixtures. 

158 


CHAP.  IV.]      TRADE  FIXTURES,  AND  MIXED  CASES.  *104 

The  cases  usually  referred  to  in  this  connection,  are  those 
where  the  trade  is  connected  with  the  enjoyment  of  the  profits 
of  the  demised  land,^  though  there  are  also  eases  of  mixed  trade 
and  domestic  fixtures,  etc.,  which  will  be  hereafter  referred  to. 
In  La'wiion  v.  Lawton,'^  where  the  question  was  whether  a  fire 
engine  set  up  for  the  benefit  of  a  colliery  by  a  tenant  for  life, 
should  be  considered  as  personal  estate,  and  go  to  his  executor, 
or  fixed  to  the  freehold  and  go  to  the  remainderman,  Lord 
Hardwicke,  in  deciding  such  engine  to  be  personal  estate,  ob- 
served that  one  reason  that  weighed  with  him  was,  its  being  a 
mixed  ease  between  enjoying  the  profits  of  the  land,  and  car- 
rying on  a  species  of  trade;  and  that,  considering  it  in  this 
light,  it  came  very  near  the  instances  in  brew-houses,  etc.,  of 
•furnaces  and  coppers.  He  observed  also,  that  the  case  [*104] 
of  the  cider-mill  between  the  executor  and  the  heir,  referred  to 
by  counsel  as  having  been  decided  by  Lord  Chief  Baron  Comyns 
at  the  assizes  at  Worcester,  was  extremely  strong;  for  though 
cider  is  a  part  of  the  profits  of  the  real  estate,  yet  it  was  held  in 
said  case  that  the  cider-mill  was  personal  estate,  notwithstand- 
ing, and  that  it  should  go  to  the  executor.^     So  in  Dudley  v. 

••  Where  the  tenant 's  calling  is  exercised  upon  material  obtained  else- 
where than  from  the  demised  land,  as  were  the  chalk  and  coals  brought 
from  a  distance  to  be  prepared  for  the  market  upon  the  demised  land  by 
the  lime-burner  in  Thresher  v.  East  London  Water  Works,  6  B.  &  C,  608 
(1824),  the  question  here  considered  does  not  arise. 

8  3  Atk.,  13   (1743). 

0  This  case  is  not  reported,  but  was  cited  by  counsel  in  Lawton  v.  Law- 
ton  (supra) ;  and  the  cider-mill  in  question  was  stated  to  have  been  let 
in  very  deep  into  the  ground;  and  yet  it  was  said  Lord  Chief  Baron 
Comyns,  upon  an  action  of  trover  brought  by  the  executor  against  the 
heir,  was  of  opinion  that  it  was  personal  estate,  and  directed  the  jury 
to  find  for  the  executor.  The  case  was  said,  however,  by  Lord  Mansfield, 
in  Lawton  v.  Salmon  (or  Lawton),  3  Atk.,  16,  note  (1782),  most  prob- 
ably to  have  turned  upon  a  custom.  See,  s.  C,  1  H.  Bl.,  259,  note.  See, 
also,  Holmes  v.  Trempcr,  20  John.,  29  (1822),  where  a  cider-mill  and 
press  erected  by  a  tenant  from  year  to  year  at  his  own  expense,  and  for 
his  own  use  in  making  cider  on  the  farm,  were  held  to  be  personal  prop- 
erty belonging  to  the  tenant,  who  might  remove  them  at  the  expiration  of 
his  tenancy;  and  wbothor  tbo  mill  was  lot  into  the  ground  or  not  was 
regarded  as  immaterial.  The  correctness  of  the  cider-mill  case  decided 
by  Comyns,  C.  B.,  as  between  executor  and  heir,  has,  however,  been 
doubted.    See  the  subject  considered,  post,  in  the  chapter  considering  that 

159 


*105  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

■Warde/  wliicli  was  very  similar  in  its  facts  to  Lawton  v.  Law- 
ton,  above  cited,  a  similar  decision  was  made,  Lord  Hardwiclje 
observing  that  the  determinations  had  been  from  consideration 
of  the  benefit  of  trade,  and  that  a  colliery  was  not  only  an 
enjoyment  of  the  estate,  but  in  part  carrying  on  a  trade.^ 
[*105]  *Other  and  more  modern  decisions  have  followed  the 
principle  of  Lawton  v.  Lawton,  and  Dudley  v.  Warde;  and,  as 
between  landlord  and  tenant,  and  executor  of  tenant  for  life  or 
in  tail  and  remainderman  and  reversioner,  the  doctrine  laid 
down  by  those  cases  seems  well  settled.^     A  variety  of  other 

relation;  also,  Fisher  v.  Dixon,  12  CI.  &  Fin.,  312,  325,  329,  331  (1845); 
s.  c,  9  Jur.,  883;  Wadleigh  v.  Janvrin,  41  N.  H.,  515  (1860).  And  the 
case  of  Holmes  v.  Tremper,  so  far  as  it  lays  down  the  doctrine  that  the 
tenant  could  remove  the  mill  if  annexed  to  the  soil,  after  the  end  of  the 
term,  subject  to  an  action  of  damages  for  breaking  the  close,  the  prop- 
erty in  the  mill  not  being  lost  by  leaving  it  annexed  after  the  end  of  the 
term,  seems  clearly  erroneous.  See  the  subject  considered  (post)  in  this 
chapter.  Both  decisions,  however,  would  doubtless  be  considered  correct, 
so  far  as  relates  to  the  question  of  the  right  of  removal  of  such  a  structure, 
as  between  landlord  and  tenant,  during  the  term. 

7  1  Ambl.,  113   (1751), 

8  It  is  to  be  observed  that  what,  as  between  landlord  and  tenant,  or 
executor  of  tenant  for  life,  or  in  tail  and  reversioner  or  remainderman, 
would  be  considered  as  accessory  to  a  trade,  would  not,  under  some  cir- 
cumstances, and  as  between  other  parties,  e.  g.,  executor  and  heir,  be  so 
considered,  but  would  be  considered  as  an  accessory  to,  and  the  means 
of  enjoying  the  inheritance.  Thus,  in  Lawton  v.  Salmon,  1  H.  Bl.,  259, 
note  (1782) ;  s.  c,  3  Atk.,  16,  note,  salt-pans  placed  by  a  testator  in 
salt-works  for  the  purpose  of  utilizing  salt  springs,  the  pans  being  made 
of  hammered  iron  riveted  together,  and  fixed  with  mortar  to  a  brick  floor, 
were  considered  by  Lord  Mansfield  not  as  accessory  to  the  carrying  on 
a  trade,  but  as  accessories  necessary  to  the  enjoyment  and  use  of  the 
principal,  the  inheritance,  though,  as  observed  by  Lord  Mansfield,  "it 
would  have  been  a  dififerent  question  if  the  springs  had  been  let,  and  the 
tenant  had  been  at  the  expense  of  erecting  these  salt  works,"  See,  also, 
remarks  of  Ellenborough,  C.  .J.,  in  Elwes  v.  Maw,  3  East,  38  (1802); 
Mansfield  v,  Blackburne,  6  Bing,  N.  C,  426  (1840),  and  the  chapter 
considering  the  relation  of  executor  and  heir   (post.) 

»  Thus,  a  steam  engine  and  pump,  used  for  the  purpose  of  working  a 
quartz  ledge  in  the  getting  out  of  gold,  the  engine  fastened  to  a  frame 
of  timber,  bolted  and  spiked  to  timbers  bedded  in  the  ground  sufficiently 
to  make  them  level,  the  pumps  extending  into  the  shaft  and  stayed  by 
rods  reaching  to  the  rafters  of  the  shed  constructed  over  the  machinery 
merely  for  its  shelter,  were  held  to  be  remQvabl^  as.  trade  fixtures.    Merritt 

160 


CB.AP.  IV.]  TEADE  FIXTURES,  AND  MIXED  CASES.  *106 

examples  has  been  suggested  by  writers  on  this  subject,  as,  for 
instance,  machines  and  erections  made  and  used  by  a  tenant  for 
procuring  or  preparing  minerals,  lime,  alum,  pottery,  brick, 
etc.  ;^*^  also  mixed  cases,  wherein  agriculture  is  combined  with 
a  species  of  trade,  as  the  raising  of  grain  for  the  purpose  of 
converting  it  into  malt  in  his  own  kilns,  for  sale,  or  grinding 
it  into  flour,  for  sale  by  the  tenant  in  his  occupation  as  a  miller ; 
so  a  distiller  might  grow  his  own  grain,  etc.^^  So  a  machine, 
uten*sil  or  building,  may  be  built  in  part  for  trade,  and  [*106] 
in  part  for  domestic  purposes ;  or  it  may  be  sometimes  employed 
for  purposes  of  trade,  and  at  other  times  for  purposes  entirely 
unconnected  therewith.  In  Van  Ness  v.  Pacard^  2  ^  building  was 
erected  by  a  tenant  for  years,  a  carpenter  by  trade,  with  a  view 
to  carry  on  the  business  of  a  dairyman,  and  for  the  residence 
of  his  family  and  servants  engaged  in  that  business.  He  also 
carried  on  the  business  of  a  carpenter  in  the  house.  Story,  J., 
delivering  the  opinion  of  the  court,  observed  that  "if  the  house 
were  built  principally  for  a  dwelling  house  for  the  family,  in- 
dependently of  carrying  on  the  trade,  then  it  would  doubtless 
be  deemed  a  fixture,  falling  under  the  general  rule,  and  im- 
movable.    But  if  the  residence  of  the  family  were  merely  an 

V.  Judd,  14  Cal,,  59  (1859).  See,  also,  Davis  v.  Moss,  38  Pa.  St.,  346 
(1861).  [So,  as  to  a  shaft  house,  engine,  etc.,  in  a  mine.  Updegraff  v. 
Lesem,  15  Colo.  App.,  297  (1900) ;  and  electrical  apparatus.  Hewitt  v. 
General  Electric  Co.,  164  111.,  420  (1897).]  So,  as  to  iron  rails  laid  by 
a  tenant  in  a  tunnel  in  a  coal  mine.  Heflfner  v.  Lewis,  73  Pa.  St.,  302 
(1873).  [Couch  V.  Welch,  24  Utah,  36,  47  (1901);  Antrim  v.  Dobbs 
(1891),  30  L.  R.,  Ire.,  424.  So,  as  to  casings  in  oil  or  gas  well,  etc., 
Shellar  v.  Shivers,  171  Pa.,  569  (1895);  Siler  v.  Globe  Glass  Co.,  21  Ohio 
C.  C,  284,  288  (1900).]  So,  as  to  sheds  erected  by  a  tenant  upon  posts 
set  in  the  ground,  for  the  purpose  of  maTiufacturing  brick.  Beekwith  v. 
Boyce,  9   Mo.,  556    (1845). 

10  In  6  Law  Mag.,  96,  referred  to  in  Gibb.  Fixt.,  24,  an  opinion  given 
by  Sir  John  Richardson  when  at  the  bar,  is  printed,  in  which  he  states  his 
opinion  that  kilns,  sheds,  and  other  conveniences  erected  by  a  tenant  from 
year  to  yejir,  used  in  the  making  of  brick  and  tiles  from  materials  on  tho 
demised  premises,  were  removable  as  trade  fixtures;  and  it  is  stated  that 
they  were  accordingly  removed,  the  right  not  being  disputed  by  the  land- 
lord. Sec,  also.  Beekwith  v.  Boyce,  9  Mo.,  556  (1845),  cited  in  next  note 
(supra). 

"  See  Ferard  Fixt.,  66,  67. 

122  Pet.,  137  (1829).    Sec,  also,  Lanphcre  v.  Lowe,  3  Neb.,  131  (1873). 

11  161 


*107  THE  LAW  OF  FIXTURES.  [CHAP.  IV, 

accessory  for  the  more  beneficial  exercise  of  the  trade,  and 
with  a  view  to  superior  accommodation  in  this  particular,  then 
it  is  within  the  exception. "  *  *  *  "The  defendant  was  also 
a  carpenter,  and  carried  on  his  business  as  such  in  the  same 
building.  It  is  no  objection  that  he  carried  on  two  trades  in- 
stead of  one.  There  is  not  the  slightest  evidence  of  this  one 
being  a  mere  cover  or  evasion  to  conceal  another,  which  was  the 
principal  design ;  and  unless  we  are  prepared  to  say  (which  we 
are  not),  that  the  mere  fact  that  the  house  was  used  for  a 
dwelling  house  as  well  as  for  a  trade,  superseded  the  excep- 
tion in  favor  of  the  latter,  there  is  no  ground  to  declare  that 
the  tenant  was  not  entitled  to  remove  it."  This  case  seems  to 
put  the  question  in  mixed  cases  upon  its  true  basis:  whether 
or  not  the  erection  in  question  was  bona  fide,  and  principally 
intended  for  trade  purposes,  as  distinguished  from  erections 
as  a  means  of  enjoying  the  inheritance;  and  if  the  former  is 
found  to  be  the  case,  the  erection  comes  within  the  spirit  and 
true  meaning  of  the  exception  as  to  trade  fixtures.  Indeed,  in 
such  a  case  there  seems  to  be  no  need  of  a  distinct  classification 
for  such  so  called  mixed  cases,  which  may,  from  their  principal 
characteristics,  properly  be  classed  with  trade  fixtures. 

The  cases  of  tenants  of  nursery  and  garden  grounds,  are 
also  usually  classified  with  the  mixed  cases  under  considera- 
,[*107]  *tion,  and  it  is  now  well  settled  that  trees,  shrubs  and 
plants,  rooted  in  and  growing  in  the  soil  of  the  demised  prem- 
ises, and  so  kept  by  the  tenant  for  purposes  of  sale  by  him  as 
articles  of  trade  or  merchandise  in  his  business  of  a  nursery- 
man, may  be  removed  by  him  during  his  term,  on  the  ground 
of  his  thus  carrying  on  a  species  of  trade.^     But  while  a  ten- 

2  Miller  v.  Baker,  1  Met.,  27  (1840) ;  s.  C,  3  Law  Eeporter,  148;  dictum 
in  Penton  v.  Kobart,  2  East,  88  (1801);  Wardall  v.  Usher,  3  Scott  N.  E., 
508  (1841);  s.  C,  10  L.  J.  (N.  S.),  C.  P.,  316;  7  Taunt.,  191;  Oakley  v. 
Monck,  L.  E.  1  Exch.,  163  (1866)  ;  King  v.  Wilcomb,  7  Barb.,  263  (1849) ; 
Maples  V.  Millon,  31  Conn.,  598  (1863).  See,  also,  Brooks  v.  Galster,  51 
Barb.,  196  (1868);  Fox  v.  Brissac,  15  Cal.,  223  (1860).  [Duffus  v. 
Bangs,  122  N.  Y.,  423,  427  (1890),  aff'g  50  Supr.  Ct.  (43  Hun),  52,  53 
(1887).  See,  also,  Hamilton  v.  Austin,  43  Supr.  Ct.  (36  Hun),  138,  143 
(1885);    Holmberg   v.   Johnson,    45   Kan.,    197    (1891).] 

[Nursery  stock  grown  upon  land  by  a  lessee  thereof,  with  the  under- 
standing that  it  was  to  be  removed  at  will  by  him  whenever  large  enough 

162 


CHAP.  rV.]  TRADE  FIXTURES,  AND  MIXED  CASES.  *108 

ant  of  a  nursery  ground  and  garden,  may  at  the  expiration 
of  his  tenancy,  remove  such  trees  as  are  salable  as  such  in  his 
trade  of  nurseryman,  yet  he  may  not  remove  such  as  are  not 
salable  as  trees,  and  are  not  fit  to  be  removed,  but  are  culti- 
vated and  used  by  the  tenant  as  a  market  gardener,  with  a 
view  to  the  fruit  they  yield.^  It  seems  also  that  a  farmer  who 
raises  young  fruit  trees  on  the  demised  premises  for  the  pur- 
pose of  keeping  up  the  orchards,  is  not  entitled  to  sell  them 
unless  he  is  a  nurseryman,  and  makes  it  his  trade  ;4  and  it  was 
held  in  the  nisi  prins  case  of  Watherell  v.  Howells,^  that  it 
was  waste  for  an  outgoing  tenant  of  garden  ground,  to  plow 
up  strawberry  beds  in  full  bearing,  notwithstanding  the  fact 
that  when  he  entered  he  had  paid  for  the  same  on  a  valuation 
to  the  person  who  assigned  the  lease  of  ground  to  him,  and  not- 
withstanding that  it  was  usual  for  strawberry  beds  to  be  ap- 
praised and  paid  for,  as  between  outgoing  and  incoming  tenants. 
Lord  Ellenborough  in  this  case  said,  that  though  by  custom 
the  tenant  might  remove  some  things,  which,  by  the  general 
law,  as  affixed  to  the  freehold,  belonged  to  the  landlord,  this 
could  never  extend  to  enable  him  to  sterilize  the  soil;  that  if 
the  defendant  in  this  case  ploughed  up  the  beds  before  they  were 
exhausted,  and  without  having  any  reasonable  object  in  view, 
he  had  certainly  prejudiced  the  plaintiff's  reversionary  in- 
•terest,  and  it  could  scarcely  be  doubted  that  he  did  so  [*108] 
wrongfully  and  maliciously.  Neither  may  a  tenant  (not  a 
gardener  by  trade)  remove  growing  box  planted  on  the  demised 
premises  by  himself,  as  borders  to  a  walk  made  by  him  in  the 
garden,  unloss  by  special  agroomont  with  the  landlord."    It  being 

for  transplanting,  is  not  a  part  of  the  realty,  and  the  lessee  is  the  owner, 
and  can  bring  an  action  for  damages  for  its  destruction.  Adams  v. 
St.  Louis,  &c.,  R'y  Co.,  138  Mo.,   242,   250    (1897).] 

3Wardall  v.  Usher,  3  Scott  N.  E.,  508  (1841);  s.  c,  10  L.  J.  (N.  S.), 
C.  P.,  316. 

<Wyndhara  v.  Way,  4  Taunt.,  316   (1812),  per  Heath,  J. 

[Orchard  trees,  planted  by  a  tenant,  cannot  be  cut  down  nor  removed 
by  him;  but,  under  clauses  1  and  3  of  the  Agricultural  Holdings  Act, 
1883,  where  the  landlord 's  consent  in  writing  to  planting  is  given,  the 
tenant  is  entitled  to  compensation.  Meara  v,  Callender  [1901],  2  Ch., 
388.] 

Bl   Camp.  N.   P.,  722    (1808). 

eEmpson  v.  Soden,  4  B.  &  Ad.,  655    (1833);   s.  c,   1   N.  &  M.,  720. 

163 


•108  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

settled  that  nnrserymen  and  gardeners  may,  during  their  term, 
remove  the  trees,  shrubs  and  phmts  kept  by  them  on  the  de- 
mised premises  for  purposes  of  sale,  on  the  ground  of  their 
carrying  on  a  species  of  trade,  it  seems  equally  clear  that  the 
greenhouses,  hothouses,  etc.,  put  up  by  such  tenants  as  acces- 
sories to  carrying  on  such  trade,  may  also  be  removed;  and 
such  seems  to  be  the  prevalent  opinion.'^ 

So,  the  articles  annexed  by  a  tenant  may  be  of  a  mixed 
nature,  combining  the  qualities  of  both  trade  and  domestic 
fixtures,  being  designed  by  the  tenant  to  be  used  in  carrying 

[' '  Parke,  J.,  there  is  no  authority  for  saying  that  an  ordinary  tenant 
may  take  up  growing  trees  without  a  special  agreement  for  that  pur- 
pose.] The  question  is,  whether  any  damage  results  to  the  freehold. 
Could  not  a  tenant  remove  flowers  which  he  had  planted  in  the  ground? 
[Littledale,  J.,  No.  Denman,  C.  J.  A  border  of  box  is  a  thing  intended 
to  be  permanent.  Parke,  J.  It  might  as  well  be  contended  that  a  tenant 
could  take  up  hedges.]  Per  curiam.  There  must  be  no  rule.  Eule  re- 
fused."    [See  Smith  v.  Felt,  50  Barb.,  612   (N.  Y.,  1868).] 

[The  general  property  in  "trees  that  are  timber"  is  in  the  owner 
of  the  land  on  which  they  grow.  "Where  a  tenant,  having  a  lease  for 
fifteen  years,  planted  algaroba  trees,  such  trees  not  being  useful  for 
timber,  but  for  firewood,  he  had  a  right  to  cut  the  same  during  his  term. 
They  are  used  chiefly  for  firewood,  and  may  have  been  planted  for  that 
purpose.     Liu  Kong  v.  Keahialoa,  8  Hawaii,  511,  512    (1892).] 

[A  tenant  may  not  remove  ornamental  shrubs,  but  may  remove  gravel 
from  the  walks,  and  wooden  steps  giving  access  to  terraces.  Burns  v. 
Fleming   (1880),  8  Sess.  Cas.,  4th  Ser.,  226.  ] 

7  In  Penton  v.  Eobart,  2  East,  88  (1801),  Lord  Kenyon  said:  "Shall 
it  be  said,  that  the  great  gardeners  and  nurserymen  in  the  neighborhood 
of  this  metropolis,  who  expend  thousands  of  pounds  in  the  erection  of 
green-houses  and  hot-houses,  etc.,  are  obliged  to  leave  all  these  things 
upon  the  premises,  when  it  is  notorious  that  they  are  even  permitted 
to  remove  trees,  or  such  as  are  likely  to  become  such,  by  the  thousand, 
in  the  necessary  course  of  their  trade?  If  it  were  otherwise,  the  very 
object  of  their  holding  would  be  defeated.  This  is  a  description  of  prop- 
erty divided  from  the  realty."  See,  also,  Syme  v.  Harvey,  24  Sc.  Sess. 
Ca.,  202  (1861);  Ferard  Fixt.,  70  and  note;  Gibb.  Fixt.,  30;  Grady 
Fixt.,  80,  83;  Hill  Fixt.,  §  27. 

The  above  dictum  of  Lord  Kenyon  was,  however,  in  Elwes  v.  Maw,  3 
East,  38  (1802),  disapproved  by  Lord  Ellenborough ;  notwithstanding 
which,  however,  it  is  believed  to  be  a  correct  statement  of  the  law.  See, 
also,  comments  of  Dallas,  C.  J.,  in  Buekland  v.  Butterfield,  2  B.  &  B., 
58  (1820);  s.  c,  4  Moore,  440.  [Eoyee  v.  Latshaw,  15  Colo.  App.,  420 
(1900);    Mears  v.  Callender,    [1901],  2   Ch.,  388,  396.] 

164 


CHAP.  IV.]  TRADE  FIXTURES,  AND  MIXED  CASES. 


109 


on  the  business  for  which  the  premises  were  occupied,  and  also 
adapted  for  the  more  easy  and  comfortable  use  and  enjoyment 
of  the  building  to  which  they  are  annexed.^ 

*In  concluding  this  section,  it  may  be  observed  that[*109] 
the  removability  of  fixtures,  whether  for  the  purpose  of  trade, 
ornament  or  convenience,  or  for  domestic  use,  is  sometimes  af- 
fected by  the  influence  of  custom.  As  was  observed  by  Story, 
J.,  in  Van  Ness  v.  Pacard,^  every  demise  between  landlord  and 
tenant  in  respect  to  matters  in  which  the  parties  are  silent,  may 
be  fairly  open  to  explanation  by  the  general  usage  and  custom 
of  the  country  or  of  the  district  where  the  land  lies.  Every 
person  under  such  circumstances  is  supposed  to  be  conusant  of 
the  custom,  and  to  contract  with  a  tacit  reference  to  it.  It  was 
accordingly  considered  in  that  case  that  it  was  competent  to 
prove  a  usage  and  custom  in  the  city  of  "Washington,  author- 
izing a  tenant  to  remove  any  building  which  he  might  erect 
upon  leased  premises,  provided  the  same  was  removed  before  the 

8  Thus,  a  wooden  cistern  lined  M-ith  lead  resting  upon  the  floor  of  the 
attic,  sinks  made  respectively  of  wood  and  marble,  and  fastened  to  the 
floor  respectively  by  nails,  and  by  being  set  into  the  floor  by  cutting  away 
the  boards,  water  pipes  fastened  by  hooks  driven  into  the  wall,  and  ter- 
minating with  faucets  aflSxed  by  metal  tacks  to  boards  nailed  to  the  wall, 
and  gas  pipes,  kept  in  place  by  metal  bands  fastened  to  the  walls,  such 
water  and  gas  pipes  passing  through  holes  cut  in  the  flooring  and  parti- 
tions, and  the  gas  pipes  in  some  instances  through  ornamental  centre 
pieces  of  wood  attached  to  the  ceiling,  which  were  cut  through  for  their 
removal — all  being  put  in  by  the  tenant  of  a  building  demised  as  a 
tavern  and  boarding  house,  and  combining  the  qualities  of  both  domestic 
and  trade  fixtures,  are  removable  by  such  tenant  during  his  term.  Wall 
V.  Hinds,  4  Gray,  256,  272   (1855). 

»2  Pet.,  137,  148  (1829).  See,  also,  Davis  v.  Jones,  2  B.  &  Aid.,  165 
(1818);  Wathcrell  v.  Howells,  1  Camp.  N.  P.,  227  (1808);  Culling  v. 
Tufl"na],  Bull.  N.  P.,  34  (1694);  Teaff  v.  Hewitt,  1  Ohio  St.,  511,  534 
(1853);  Keogh  v.  Danicll  (infra);  Wigglesworth  v.  Dallison,  and  other 
cases  cited  post,  in  chapter  on  Emblements.  [See  Tucker  v.  Linger,  (1883), 
8  App.  Cas.,  508;  Brown  v.  Herriott,  1  Kyshe,  43,  51  (Straits  Set., 
1842).] 

[Where  a  custom  is  sought  to  be  established  that  tenants  engaged  in 
the  saw-mill  business,  have  the  right  to  remove  temporary  structures 
erected  by  them,  but  there  is  no  evidence  as  to  the  length  of  time  this 
right  continues,  and  no  removal  is  made  for  four  months  after  the 
premises  are  abandoned,  the  common  law  rule  will  be  applied.  Young- 
blood  v.  Eubank,  68  Ga.,  630,  632    (1882).] 

165 


•110  TUE  LAW  OF  FIXTURES.  [CHAP.  IV. 

expiration  of  the  term ;-  and  that  parol  testimony  was  compe- 
tent to  iro  to  the  jnry  to  establish  such  a  custom,  its  weight 
and  credibility,  however,  being  solely  for  the  jury. 

But  the  custom  of  the  country  can  have  no  operation  where 
[*110]  *there  is  a  contract  between  the  parties,  with  provisions 
applicable  to  the  point  in  controversy.^ 

II.    Agricultural  Fixtures. 

In  the  case  of  Elwes  v.  Maw,'*  the  distinction  was  first  taken 
between  buildings  and  erections  annexed  to  the  freehold  for 
the  purposes  of  trade,  and  those  made  for  the  purposes  of  agri- 
culture, and  better  enjoying  the  immediate  profits  of  the  land,  in 

2  A  similar  custom  exists  in  the  city  of  Milwaukee,  and  was  held  to  be 
valid  in  Keogh  v.  Daniell,  12  Wis.,  163   (1860). 

See,  also,  11  Vin.  Abr.,  154,  where  it  is  said:  "A  granary  built  on 
pillars  in  Hampshire  is  a  chattel,  and  goes  to  the  executors,  and  may  be 
recovered  in  trover.  This  shall  be  understood,  according  to  the  custom 
of  the  country;  coram  Eyre,  Ch.  B.,  Summer  Assizes,  1724,  apud  Win- 
chester. ' ' 

3  Eoxburghe  v.  Eoberton,  2  Bligh,  156  (1820)  ;  Keogh  v.  Daniell  (su- 
pra); Martyr  v.  Bradley,  9  Bing.,  24  (1832).  [Silliman  v.  Whitmer, 
11  Pa.  Super.,  243,   259    (1899),  aff'd  in   196  Pa.  St.,   363,  365    (1900).] 

In  Keogh  v.  Daniell,  the  lease  contained  covenants  on  the  part  of  the 
lessee  to  pay  the  rent,  "except  in  case  of  the  destruction  of  the  premises 
by  accidental  fire,"  and  to  deliver  up  the  premises  at  the  end  of  the 
term,  * '  reasonable  use  and  wear  thereof,  and  damages  by  accidental  fire, 
or  other  accidents  not  happening  through  the  neglect  of  the  tenant,  only 
excepted."  These  covenants  occurring  in  the  printed  part  of  the  printed 
forms  in  general  use,  and  the  rent  being  of  small  amount,  such  as  would 
be  paid  for  a  mere  lease  of  the  ground,  and  the  premises  being  at  the 
time  of  the  demise  wholly  unimproved,  the  covenants  were  held  not  to  be 
inconsistent  with  such  usage,  nor  to  show  an  intention  to  enlarge  the 
meaning  of  the  word  "premises,"  so  as  to  make  it  include  buildings  and 
other  improvements,  where  none  were  mentioned  or  included  in  the  grant- 
ing clause. 

4  3  East,  38  (1802).  This  case  has  been  regarded  as  a  leading  case 
upon  the  subject  which  it  discusses. 

Where  permission  was  given  by  the  owner  of  land  to  a  tenant  to  cut 
down  some  timber  on  the  land  for  the  purpose  of  erecting  a  cattle-house 
•thereon,  and  not  simpliciter  for  his  own,  and  the  tenant  using  only  a  few 
boards  of  his  own,  proceeded  to  erect  the  building,  which  was  composed 
of  corner  and  side  posts  driven  into  the  ground  with  the  sides  boarded  up, 
but  the  roof  was  not  on  when  the  land  was  sold  by  the  lessor,  and  the 

166 


CHAP.   IV.]  AGRICULTURAL    FIXTURliS.  *111 

favor  of  the  tenant's  right  to  remove  the  former,  and  negativ- 
ing the  right  of  removing  the  latter;  and  it  was  in  that  ease 
held,  that  where  a  tenant  in  agriculture  for  a  term  of  years  had 
erected  at  his  own  expense,  and  for  the  mere  necessary  and  con- 
*venient  occupation  of  his  farm,  a  beast-house,  carpen-  [*111] 
ter's  shop,  fuel-house,  cart-house,  pump-house,  and  fold-yard 
wall,  which  buildings  were  of  brick  and  mortar,  and  tiled  and 
let  into  the  ground,  he  could  not  remove  the  same,  though 
during  his  term,  and  though  he  thereby  left  the  premises  in 
the  same  state  as  when  he  entered.  It  is  to  be  observed,  with 
reference  to  this  decision,  in  which  the  early  authorities  were 
quite  fully  considered,  that  it  appears  to  be  quite  too  strict 
and  narrow  a  construction  of  the  meaning  of  the  words  "trade," 
and  a  more  strict  and  rigid  enforcement  of  the  rule  quicquid 
plantatur  solo,  solo  cedit,  as  between  landlord  and  tenant  for 
years,  than  a  liberal  interpretation  of  the  term  "trade,"  and 
the  true  grounds  and  spirit  of  the  exception  relating  thereto 
seem  to  justify.  It  seems  also  opposed  to  the  spirit  of  prior 
cases  on  the  subject;^  as  it  clearly  seems  to  be  to  that  of  subse- 

lessee  was  notified  by  the  vendee  to  quit,  and  stopped  work  thereon  and 
pulled  down  and  removed  the  building  from  the  premises.  Seld,  that  no 
question  arose  as  between  tenant  and  reversioner  of  the  fixtures,  it  being 
obvious  that  the  original  owner  of  the  land  never  meant  the  timber  to  be 
applied  otherwise  than  to  this  house,  and  that  defendant  had  no  right 
to  remove  it.     Smith  v.  Render,  27  L.  J.  Exch.,  83   (1857). 

[While  the  courts  of  this  country  have  adopted  a  liberal  rule,  and 
have,  to  a  certain  extent,  done  away  with  the  distinction  between  trade 
and  agricultural  fixtures,  a  tenant  cannot  sever  a  building  which  was 
upon  the  freehold  when  he  took  possession,  use  some  of  the  material 
for  a  part  of  another  house  erected  by  him,  and  remove  the  latter  house. 
Dougherty  v.  Spencer,  23  111.  App.,  357,  359   (1887).] 

[A  fence  cannot  be  removed  by  a  tenant,  nor  can  any  part  of  it 
though  that  part  is  easily  removable.  Knox  v.  Brotherton,  14  N.  S.  W., 
Supr.  Ct.,  185  (1875).  See  Minister  for  Lands  v.  Watt,  20  N.  S.  W., 
229  (1899).  See,  also,  Winans  v.  Beidler,  6  Okla.,  603,  605  (1898), 
that   agricultural   tenants   are  not   so   much   favored   as   trade   tenants.] 

1  See  the  cases  already  cited  {ante)  in  this  chapter,  particularly  the  so- 
called  mixed  cases;  also,  Bro.  Abr.  Waste,  pi.  104;  Id.  Chattels,  pi.  7; 
Day  V.  Austin,  Owen,  70  (1595);  Cooke's  Case,  Moore,  177  (1581);  Om- 
bony  V.  Jones,  19  N.  Y.,  234  (18.59)  ;  Wall  v.  Hinds,  4  Gray,  256  (1859). 
This  subject  is  learnedly  considered  in  Ferard  Fixt.,  *57  et  seq.,  where  the 
case  of  Elwcs  v.  Maw  is  severely  criticised.  See,  ante,  p.  *102.  Sec,  also, 
2  Smith's  Lead.  Cas.   (7  Am.  Ed.),  242,  258;    1  Wash.  Real  Prop.,  114; 

167 


•112  THE  LAW  OF  FIXTURES.  [CHAP.   IV. 

quent  cases;  and  though  perhaps  the  case  is  hardly  to  be  con- 
sidered as  directly  overruled,  yet  it  has  so  often  been  criticised 
that  it  probabl}"  will  not  (at  least  in  the  United  States),  as 
between  landlord  and  tenant  for  years,  be  considered  as  furnish- 
ing the  rule  for  the  decision  of  future  cases  on  the  subject 
when  presented  to  the  courts  for  determination.  The  subject 
was  somewhat  considered  by  Story,  J.,  in  delivering  the  opinion 
of  the  court  in  Van  Ness  v.  Pacard ;  ^  referring  to  the  case 
of  Elwes  V.  Maw,  he  said:  "The  court  there  decided,  that 
in  the  case  of  landlord  and  tenant,  there  had  been  no  relaxation 
of  the  general  rule  in  cases  of  erections  solely  for  agricultural 
purposes,  however  beneficial  or  important  they  might  be 
[*112]  *as  improvements  of  the  estate.  Being  once  annexed  to 
the  freehold  by  the  tenant,  they  became  a  part  of  the  realty,  and 
could  never  afterwards  be  severed  by  the  tenant.  The  distinction 
is  certainly  a  nice  one,  between  fixtures  for  the  purposes  of 
trade,  and  fixtures  for  agricultural  purposes,  at  least  in  those 
cases  where  the  sale  of  the  produce  constitutes  the  principal 
object  of  the  tenant,  and  the  erections  are  for  the  purpose  of  such 
a  beneficial  enjoyment  of  the  estate.  But  that  point  is  not  now 
before  us;  and  it  is  unnecessary  to  consider  what  the  true  doc- 
trine is  or  ought  to  be  on  this  subject.  However  well  settled 
it  may  now  be  in  England,  it  cannot  escape  remark,  that  learned 
judges  at  different  periods  in  that  country  have  entertained 
different  opinions  upon  it,  down  to  the  very  date  of  the  deci- 
sion in  Elwes  v.  Maw,  3  East,  38.  The  common  law  of  Eng- 
land is  not  to  be  taken  in  all  respects  to  be  that  of  America. 

Wansborough  v.  Maton,  4  Ad.  &  E.,  884  (1836);  s.  c,  6  N.  &  M.,  367; 
Dean  v.  Allalley,  3  Esp.,  11   (1799). 

The  correctness  of  the  rule  in  Elwes  v.  Maw,  has,  however,  been  main- 
tained by  other  writers  on  the  subject.  See  Gibbons  Fixt.,  *26  et  seq.; 
Grady  Fixt.,  *63  et  seq.;  Brown  Fixt.,  §   32;  Hill  Fixt.,  §  23  et  seq. 

[Cabins  and  bridges  placed  upon  a  plantation  by  a  lessee  belong  to 
the  owner  of  the  soil.  Penn  v.  Citizens'  Bank,  32  La.  Ann.,  195,  200 
(1880).] 

[Where,  by  contract,  a  manager  of  a  plantation  agreed  to  pay  all  "real 
charges,"  it  is  optional  with  him  as  to  what  improvements  he  will  make; 
but  if  he  makes  any,  he  is  not  entitled  to  compensation  therefor,  nor 
has  he  a  right  to  take  them  away.  Long  v.  Kee,  42  La.  Ann.,  899,  906 
(1890).] 

2  2  Pet.,  137   (1829). 

168 


CHAP.  IV.]  AGRICULTURAL   FIXTURES.  *113 

Our  ancestors  brought  with  them  its  general  principles,  and 
claimed  it  as  their  birthright;  but  they  brought  with  them 
and  adopted  only  that  portion  which  was  applicable  to  their 
situation.  There  could  be  little  or  no  reason  for  doubting  that 
the  general  doctrine  as  to  things  annexed  to  the  freehold,  so  far 
as  it  respects  heirs^and  executors,  was  adopted  by  them.  The 
question  could  arise  only  between  different  claimants  under 
the  same  ancestor,  and  no  general  policy  could  be  subserved 
by  withdrawing  from  the  heir  those  things  which  his  ancestor 
had  chosen  to  have  annexed  to  the  inheritance.  But,  between 
landlord  and  tenant,  it  is  not  so  clear  that  the  rigid  rule  of 
the  common  law,  at  least  as  it  is  expounded  in  3  East,  38, 
was  so  applicable  to  their  situation  as  to  give  rise  to  neces- 
sary presumption  in  its  favor.  The  country  was  a  wilderness, 
and  the  universal  policy  was  to  procure  its  cultivation  and  im- 
provement. The  owner  of  the  soil  as  well  as  the  public  had 
every  motive  to  encourage  the  tenant  to  devote  himself  to  agri- 
culture, and  to  favor  any  erections  which  should  aid  this  re- 
sult ;  yet,  in  the  comparative  poverty  of  the  country,  what  tenant 
could  afford  to  erect  fixtures  of  much  expense  or  value,  if  he 
was  to  lose  his  whole  interest  therein  by  the  very  act  of  erec- 
tion? His  cabin  or  log  hut,  however  necessary  for  any  improve- 
ment of  the  soil,  would  cease  to  be  his  the  moment  it  was 
♦finished.  It  might,  therefore,  deserve  consideration,  [*113] 
whether  in  case  the  doctrine  were  not  previously  adopted  in  a 
State  by  some  authoritative  practice  or  adjudication,  it  ought  to 
be  assumed  by  this  court  as  a  part  of  the  jurisprudence  of  such 
State  upon  the  mere  footing  of  its  existence  in  the  common 
law."  The  views  thus  advanced  by  Story,  J.,  in  Van  Ness  v.  Pac- 
ard,  have  been  approved  by  several  learned  judges  in  the  differ- 
ent States,  as  will  be  seen  from  the  references  in  the  note  below.^ 

1  See,  also,  Holmos  v.  Tremper,  20  John.,  29  (1822),  holding  a  cider- 
mill  and  press  erected  by  a  tenant  from  year  to  year  on  the  demised 
premises  for  his  own  use  in  making  cider  on  the  farm,  to  be  removable 
at  the  expiration  of  his  tenancy. 

[See  Gardiner  v.  Parker,  18  Gr.  Ch.,  26,  30  (Ont.,  1871),  where  refer- 
ence was  made  to  the  fact  that  the  tenant  manufactured  and  sold  wine, 
but  it  was  not  contended  that  the  fixtures  put  up  by  him  were  trade 
fixtures.] 

[A  blacksmith  shop  moved  to  the  farm  by  means  of  two  runners  at- 

169 


*114  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

There  does  uot  seem,  however,  to  have  been  any  adjudication 
in  the  United  States  on  the  question  as  between  landlord  and 
tenant  for  years,  directly  overruling  Elwes  v.  Maw.  In  the 
ease  of  McCullough  v.  Irvine's  Executors,^  the  question  was 
somewhat  considered  in  a  case  between  the  executors  of  a  ten- 
ant for  life  and  the  reversioner.  This  was  an  action  on  the 
[*114]  *case  in  the  nature  of  waste,  in  which  the  injury  com- 
plained of  was,  inter  alia,  the  pulling  down  and  removing  the 
structures  described  in  the  opinion  of  the  court,  which  was  de- 
tached to  the  bottom,  and  brought  there  to  be  used  temporarily,  and 
which  remained  upon  such  runners,  does  not  become  a  fixture.  Smyth  v. 
Stoddard,   203  111.,   424,   432    (1903).] 

[Stables  resting  upon,  but  not  fastened  to,  blocks  sunk  into  the 
ground,  are  removable  by  a  tenant.  Weathersdane  Park  Co.  v.  Watson,  16 
Vict,   758,   760    (1890).] 

In  White  v.  Arndt,  1  Whart.,  94  (1835),  Rogers,  J.,  in  referring  to  this 
distinction,  said:  "The  question  does  not  depend  upon  the  size  or  form 
of  the  house,  or  the  manner  in  which  it  is  built;  but  the  only  inquiry  al- 
ways is,  whether  it  was  intended  for  purposes  of  trade  or  not;  and  I 
cannot  believe  that  the  nature  of  the  business,  whether  agricultural  or 
mercantile,  can  make  any  difference."  See,  also,  Haflick  v.  Stober,  11 
Ohio  St.,  482    (1860). 

[In  Davis  v.  Eastham,  81  Ky.,  116,  118  (1883),  Hargis,  C.  J.,  thinks 
the  broad  rule  with  reference  to  manufacturing  and  trade  should  be 
extended  to  agriculture.] 

In  Dubois  v.  Kelly,  10  Barb.,  501  (1851),  Harris,  J.,  also  quoted  ap- 
provingly the  above  observations  of  Story,  J.,  in  Van  Ness  v.  Pacard, 
and  further  said :  ' '  This  distinction,  although  it  may  not  have  been  in  any 
single  instance  broken  down  by  any  adjudged  case,  has  not,  I  am  per- 
suaded, been  regarded  with  much  favor  in  this  country,  if,  indeed,  it  has 
in  England.  The  foundation  upon  which  it  rests  is  narrow  and  artificial. 
The  general  policy  which  has  created  exceptions  to  the  general  rule,  that 
whatever  is  aflSxed  to  the  freehold  cannot  be  removed  without  the  con- 
sent of  the  owner  of  the  inheritance,  applies  as  well  to  erections  for 
agricultural  and  other  purposes,  as  to  erections  for  the  purposes  of  trade." 

See,  also,  dicta  in  Teaff  v.  Hewitt,  1  Ohio  St.,  532  (1853)  ;  Harkness  v. 
Sears,  26  Ala.,  497  (1855);  Leland  v.  Gassett,  17  Vt.,  411  (1845);  Wing 
V.  Gray,  36  Vt.,  267  (1863),  where  hop  poles  set  in  the  ground  by  an 
agricultural  tenant,  were  held  removable;  Perkins  v.  Swank,  43  Miss., 
362  (1870)  ;  McKim  v.  Mason,  3  Md.  Ch.  Dec,  195  (1852) ;  Whiting  v. 
Brastow,  4  Pick.,  310  (1826)  ;  2  Kent  Com.,  346.  [See  Crocker  v.  Dono- 
van, 1  Okla.,  165,  174  (1892);  Carver  v.  Gough,  153  Pa.  St.,  225   (1893).] 

2  13  Pa.  St.,  438  (1850).  See,  also,  Haflick  v.  Stober,  11  Ohio  St.,  483 
(1860). 

170 


CHAP.  IV.]  AGRICULTURAL   FIXTURES.  *115 

livered  by  Coulter,  J. :  "*****  ^he  main  question  to  be 
resolved  in  the  case  in  hand  is,  therefore,  whether  the  brick 
house  two  stories  high,  and  the  bank  barn"  [the  under  part  of 
which  was  stone,  and  the  upper  part  frame],  "66  feet  long  by 
33  feet  wide  and  7  feet  of  an  overshot,  with  corn-crib  and  wagon- 
shed  erected  by  the  tenant  for  life  during  the  life  of  his  wife 
and  child,  who  were  the  owners  of  the  remainder  in  fee  of  two- 
thirds,  did  become  part  of  the  freehold  and  inheritance  or  not. 
The  tenant  for  life,  Irvine,  was  the  owner  of  the  other  third 
in  fee ;  and  after  the  death  of  his  wife  and  child  he  threw  down 
the  house  and  barn,  and  hurled  the  materials  away,^  because 
the  remainderman  would  not  give  the  price  he  asked  for  the 
whole  inheritance.  This  suit  is  instituted  by  the  remainderman 
against  the  executors  of  Irvine,  who  held  the  life  estate"  [by 
curtesy]  "in  two-thirds  of  the  freehold.  The  defendants  allege 
that,  notwithstanding  Irvine  pulled  down  the  house  and  barn 
and  its  adjuncts  and  sold  off  a  large  quantity  of  timber,  leaving 
but  a  small  portion  of  woodland,  yet  he  is  not  answerable  in 
damages,  because  the  land  at  the  death  of  Irvine,  in  its  de- 
nuded state  was  worth  as  much  and  more  than  it  was  valued 
at  when  the  life  estate  first  accrued  and  he  took  possession. 
And  the  court  below  sustained  this  ground,  summing  up  their 
instructions  to  the  jury  in  these  comprehensive  words:  'But 
if  the  inheritance  was  left  as  valuable  by  the  tenant  for  life, 
independent  of  the  consideration  of  his  own  acts  and  conduct 
respecting  it,  as  when  he  entered  upon  it,  and  more  so,  then 
we  think  the  plaintiff  is  not  entitled  to  recover.'  I  cannot 
assent  to  this  view  of  the  case.  It  is  attempted  to  be  sus- 
tained by  those  exceptions  to  the  general  rule  of  permanent 
improvements  becoming  part  of  the  freehold,"which  in  favor  of 
trade,  permit  fixtures  or  machinery  to  be  severed  from  the  in- 
heritance by  a  tenant.  Agriculture  is  denominated  a  trade, 
and  a  brick  house  and  barn  are  alleged  to  be  the  implements 
•and  instruments  by  which  it  is  carried  on,  and  which  f*115] 
are  essential  to  its  comfortable  prosecution.  The  hypothesis  has 
a  bold  and  dashing  novelty  a])ont  it,  and  is  not  without  plaus- 
il)ility.     Husbandry  has  been  considered  a  more  primitive  and 

1  The  Reporter's  statement  of  the  facts  in  the  case,  states  that  he  threw 
them  down  and  removed  them  to  other  land  of  his  own. 

171 


♦116  TUE  LAW  OP  FIXTURES.  [cnAP.  IV. 

siDiple  occupation  than  handy  work  or  mechanism,  and  it  is  by 
some  called  a  science.  But  call  it  a  trade;  still,  its  success 
and  its  products  depend  upon  the  showers  of  heaven  and  the 
nutriment  of  the  earth.  A  cider  press  is  an  instrument  by 
which  cider  is  made,  and,  like  a  plough  and  a  harrow,  or  a 
threshing-  machine,  is  an  implement  of  agriculture  and  belong^ 
to  the  tenant.  But  a  two  story  brick  house  and  a  large  bank 
barn  are  not  instruments  or  implements  of  any  trade.  But 
they  are  great  conveniences  which  enable  men  of  all  sorts  to 
enjoy  the  fruits  of  their  labor  or  trade.  If  you  make  these 
an  exception,  the  rule  itself  is  obliterated,  and  nothing  is  es- 
sentially of  the  realty,  except  the  earth  itself  and  that  which 
is  in  its  bowels. 

' '  The  exceptions  have  been  carried  very  far  by  some  decisions 
in  the  Eastern  States,  particularly  in  Whiting  v.  Brastow,  4 
Pick.,  310;  Holmes  v.  Tremper,  20  Johns.,  29,  and  also  in  Van 
Ness  V.  Pacard,  2  Peters,  137.  It  is,  however,  in  somewhat 
loose  expressions  of  the  court  in  those  cases,  and  not  from  the 
cases  themselves,  that  the  principle  asserted  by  the  court  below 
derives  some  countenance.  The  first,  where  the  dicta  is  the  most 
latitudinarian,  was  merely  the  removal  of  a  padlock  and  some 
loose  boards,  about  which  there  never  could  have  been  any 
reasonable  doubt.  The  second  was  the  removal  of  a  cider  press 
by  the  tenant;  and  there  no  reasonable  doubt  of  its  being  an 
implement  for  the  manufacture  of  cider  could  be  entertained. 
The  last  case  runs  to  a  little  more  magnitude,  for  it  was  re- 
moving a  sort  of  a  house,  but  a  house  erected  for  the  pur- 
pose of  manufacturing  a  commodity;  it  was  more  properly  a 
shop  for  making  oil  ;^  and  the  decision  goes  expressly  on  the 
ground  of  its  not  being  a  dwelling  house.  But  none  of  these 
cases,  either  expressly  or  by  implication,  overrule  or  im- 
[*116]  *peach  the  case  of  Elwes  v.  Maw,  3  East,  38,  in  which  it 
was  held  that  an  agricultural  tenant  could  not  remove,  during 
the  continuance  of  his  lease,  a  beast-house,  carpenter-shop  and 
fuel-house,  etc.,  erected  for  the  use  of  the  farm,  even  though 

1  This  is  an  error.  The  tenant  was  a  carpenter  by  trade,  and  erected 
the  building  in  question  with  a  view  to  carry  on  the  business  of  a  dairy- 
man. Perhaps  "oil"  is  regarded  as  synonymous  with  the  usual  products 
of  such  shops. 

172 


CHAP.  IV.]  AGRICULTURAL    FIXTURES.  *117 

he  left  the  premises  as  he  found  them.  In  that  ease  the  whole 
law  on  that  subject  was  ably  reviewed;  and  although  it  is  an 
English  ease,  I  believe  it  to  be  the  law  of  Pennsylvania,  and 
for  the  very  same  reason  that  the  court  below  give  for  a  contrary 
opinion.  In  my  judgment  that  is  a  rule  which  tends  to  pro- 
mote the  interests  of  agriculture,  while  its  converse  would  tend 
to  retard  and  impend"  [impede]  "its  progress.  We  must  have 
many  tenancies  for  life  in  Pennsylvania  by  will,  by  deed,  and 
by  descent;  and  if  the  tenant,  after  having  enjoyed  the  fruits 
of  the  land  during  perhaps  a  long  life,  may,  just  before  his 
death,  strip  it  of  the  fences  he  has  built,  and  the  house  and  barn 
he  has  erected,  because  the  advance  in  the  improvement  and 
commerce  of  the  country  would  leave  the  land  of  as  much  in- 
trinsic value  as  when  he  took  possession,  and  convert  it  into  a 
solitary  waste  for  the  winds  to  moan  over,  the  tenant  of  a  new 
generation  will  have  to  take  the  land  as  it  was  a  generation  be- 
fore,-and  commence  improvements  de  novo.  This,  I  appre- 
hend, would  be  a  slovenly  mode  of  promoting  the  interests  of 
agriculture.  There  is  a  debt  due  to  the  land  in  return  for  its 
fruits  and  products,  and  a  good  tenant  for  life  always  pays  it. 
He  manures  it,  fences  it,  and  builds  a  habitation  on  it,  and  they 
become  part  of  the  freehold,  and  thus  the  interest  of  agriculture 
is  promoted.  These  exertions  are  tlie  voluntary  gift  of  the  life 
tenant  to  the  inheritance.  He  dedicates  them  to  the  inheri- 
tance when  he  has  enjoyed  the  fruits  of  his  labor.  A  good 
farmer  creates  but  does  not  destroy;  and  I  may  add,  that  this 
rule,  just  in  itself,  has  a  tendency  to  liberalize  the  social  affec- 
tions as  well  as  to  promote  agriculture.  It  banishes  that  sor- 
did and  selfish  spirit  which  would  destroy  what  the  individual 
can  no  longer  enjoy. 

"All  fixtures  and  erections  which  the  law  allows  a  tenant  for 
years  to  remove,  are  put  up  for  the  avowed  purpose  of  a  tem- 
porary occupancy.  He  pays  a  suitable  compensation  under 
contract  for  liberty  to  erect  them  for  the  uses  of  his  particular 
•trade  or  calling.  Tbey  are  desifrnod  for  his  use,  and  his  |*117t 
alone.  Not  so  with  the  tenant  for  life  in  tho  ease  on  hand.  He 
was  himself  owner  of  one-third  of  the  inheritance,  his  wife  and 
child  were  owners  of  the  reversionary  interest  in  the  other  two- 
thirds.  Who,  thon,  can  doubt  his  intention  of  making  these 
buildings  with  a  view  of  benefiting  the  inheritance  for  himself, 

173 


•118  THE  LAW  OF  FIXTURES.  [CHAP.   IV. 

for  his  wife  and  child ;  by  that  intent  and  act  he  dedicated  them 
to  the  freehold,  and  so  incorporated  them  with  the  inheritance 
as  to  foreclose  his  power  of  recall  after  the  death  of  his  wife 
and  child  to  the  disherison  of  their  heirs." 

With  reference  to  this  decision,  which  we  have  deemed  of 
sufficient  importance  to  warrant  quotations  therefrom  at  con- 
siderable length,  it  is  to  be  observed  that,  notwithstanding  the 
dictum  approving  the  case  of  Elwes  v.  Maw,  which  is  prob- 
ably to  be  understood  as  referring  only  to  this  case,  and  not  to 
the  general  doctrine  as  to  tenants  for  years,  it  is  hardly  to  be 
considered  as  an  authority  against  the  right  of  an  agricultural 
tenant  for  years  to  remove,  during  his  term,  erections  made  by 
him  upon  the  demised  premises  for  the  purpose  of  agriculture. 
The  case  arose  between  the  executors  of  the  tenant  for  life  and 
the  reversioner,  between  whom,  as  we  have  already  seen,  the 
rule  is  not  so  liberally  applied  in  favor  of  the  tenant,  as  between 
an  ordinary  tenant  for  years  and  his  landlord.  Had  the  decis- 
ion in  this  case  been  in  favor  of  the  right  of  removal,  it  would 
have  been  an  authority  in  favor  of  the  right  of  a  tenant  for 
years  to  remove  a  similar  erection,  as  against  his  landlord ;  but 
the  converse  of  this  proposition  is  by  no  means  true.  The  case 
itself  was  undoubtedly  correctly  decided,  and  the  distinction 
between  the  rights  of  tenants  for  life  and  tenants  for  years, 
as  to  erections  like  the  ones  in  question,  properly  made.  As 
was  well  observed  by  Chancellor  Cooper,  in  Cannon  v.  Hare:^ 
"Tenants  for  life  are  usually  widows  as  dowresses,  or  husbands 
as  tenants  by  curtesy,  or  devisees  under  wills  with  remainder 
[*118]  *to  children  or  other  blood  relations.  The  persons  en- 
titled in  remainder  in  such  cases,  are  ordinarily  those  nearest 
in  ties  of  affection  and  blood  to  the  tenants  of  the  life  estate.  It 
may  well  be  presumed,  as  between  such  parties,  that  improve- 
ments put  upon  the  property  by  the  life  tenant  are  not  designed 
for  the  temporary  use  of  such  tenant,  but  as  permanent  amelio- 
rations."   And  especially  is  it  so,  where,  as  in  this  case,  the  life- 

11   Tenn.  Ch.,   22,  33    (1872);    1   South.  Law  Eev.    (1872),   246. 

In  Cannon  v.  Hare,  it  was  held  that  buildings  erected  on  a  dower  estate 
by  the  dowress  or  person  claiming  under  her,  if  designed  as  additions  to 
the  freehold,  or  to  enhance  its  convenience  or  income,  pass,  on  the  death 
of  the  tenant  for  life,  to  the  remainderman. 

174 


CHAP.  rV.]  AGRICULTURAL   FIXTURES.  *119 

tenant  was  himself  the  owner  in  fee  of  one-third  of  the  inheri- 
tance. And  in  general,  it  may  perhaps  be  said,  that  the  pre- 
sumption of  intention  to  make  annexations,  like  the  ones  in 
question,  a  permanent  accession  to  the  realty,  is  much  more 
forcible  in  such -a  "case,  by  reason  of  the  probably  extended 
duration  of  the  tenant 's  estate,  than  in  case  of  a  tenant  for  years, 
even  though  there  are  no  ties  of  blood  and  affection  between  the 
tenant  for  life  and  reversioner,  as  in  the  case  under  considera- 
tion.2 

"With  reference,  however,  to  the  general  observations  of  the 
learned  judge  who  delivered  the  opinion,  as  to  agriculture's  not 
being  a  trade,  etc.,  within  the  meaning  of  the  exception,  such 
observations,  so  far  as  they  may  be  considered  to  apply  to  ten- 
ants for  years,  were  mere  dicta,  and  seem  opposed  to  the  gen- 
eral current  of  judicial  opinion  in  this  country.^ 

And  if  agriculture  be  conceded  to  be  a  trade  within  the 
meaning  of  the  exception,  a  distinction  might  properly  be 
made  between  the  dwelling-house^  and  the  barn,  and  other 
erections  in  question  in  said  case.  Dwelling-houses  being  in- 
tended for  purposes  of  habitation,  are  equally  necessary  to  the 
farmer,  tradesman,  and  gentleman  of  leisure  following  no  oc- 
cupation, and  when  used  solely  or  principally  for  such  pur- 
poses, cannot  properly  be  said  to  be  accessory  to  a  trade;  but 
the  barn  and  other  erections  in  question,  as  between  landlord 
and  tenant  for  years,  seem  as  properly  to  be  instruments  or 
implements  of,  or  accessory  to,  a  trade,  as  the  ice-house  for  the 
storage  of  ice,  in  Antoni  v.  Belknap,'^  or  the  ball-room  erected 
•by  the  tenant  for  use  in  liis  business  as  inn-keeper,  in  f*119] 
Ombony  v.  Jones. ^ 

2Sco  1  Wash.  Real.  Prop.,  114,  115. 

3  See  the  cases  referred  to,  at  the  beginning  of  this  subject  {ante,  p. 
•113). 

*  See  the  subject  of  dwelling-houses  further  considered,  post.  See, 
however,  Haflick  v.  Stober,  11   Ohio  St.,  482    (1860). 

M02   Mass.,   193    (1869). 

ni9  N.  Y.,  234  (1859).  See,  also,  (ante,  p.  »102).  The  words,  "in- 
struments," and  "implements,"  used  in  the  case  of  McCulIough  v.  Irvine 
(supra),  with  reference  to  trade  fixtures,  seem  entirely  too  narrow;  for 
it  can  hardly  be  said  that  any  house  is,  in  strictness,  an  instr\imont  or  an 
implement  of  trade;  and  yet  it  is  acknowledged  by  nearly  all  the  authori- 
ties on  the  subject,  that  such  erections,  when  accessory  to  a  trade,  and 

175 


*120  THE  LAW  OP  FIXTURES.  [CHAP.  IV. 

Amoug  those  who  concede  the  binding  authority  of  Elwes 
V.  Maw,  there  has  hitherto  existed  some  diU'erence  of  opinion 
as  to  the  exact  scope  of  that  case  as  an  authority,  some  con- 
tending that  the  case  is  conclusive  against  the  privilege  of  all 
agricultural  tenants  to  remove  any  kind  of  fixtures  erected  on 
the  farm  during  their  term,'^  and  others  construing  the  case 
somewhat  strictly,  and  contending  that  the  judgment  has  no 
reference  to  any  other  species  of  fixtures  than  those  then 
under  the  consideration  of  the  court,  and  that  the  case  is  only 
an  authority  against  the  removal  of  those  and  similar  erec- 
tions, "which  have  no  reference  to  trade,  no  reference  to  manu- 
factures or  machinery,  but  were  erected  'for  mere  agricultural 
purposes. '  "  ^  The  latter  seems  to  be  the  more  prevalent  and 
the  better  opinion;  and  it  may  probably  be  taken  as  a  correct 
statement  of  the  law,  even  where  Elwes  v.  Maw  is  regarded 
as  a  binding  authority  on  the  question,  that  mere  implements 
or  articles  of  machinery,  used  as  a  means  of  facilitating  the 
labor  of  the  tenant,  not  intended  to  be  a  permanent  accession 
to  the  realty,  and  removable  integre  salve  et  commode,  may 
[*120]  *be  removed  by  the  tenant  for  years  during  his  term, 
even  though  erected  for  agricultural  purposes.^ 

removable  integre,  salve,  etc.,  may  be  removed  by  the  tenant  during  the 
term.  If  agriculture  be  conceded  to  be  a  trade,  it  can  hardly  be  said 
that  the  barn,  corn-crib,  etc.,  in  question,  were  not  accessory  thereto. 
See,  however,  Grady  Fixt.,  82.  Erections  accessory  to  trade,  or  "for  the 
sake  of  trade,"  as  it  is  expressed  in  Dudley  v.  Warde,  1  Ambl.,  113 
(1751),  seems  a  more  appropriate  form   of  expression, 

7  See  Grady  Fixt.,  73;  Ferard  Fixt.,  56. 

See,  also,  Leach  v.  Thomas,  7  C.  &  P.,  327  (1835)  ;  where  it  was  held, 
that  a  tenant  had  no  right  to  remove  small  pillars  of  brick  and  mortar, 
built  by  him  on  the  dairy  floor  to  hold  pans,  though  such  pillars  were  not 
let  into  the  ground. 

8  See  Grady  Fixt.,  73,  et  seq. 

9  There  seems  to  be  very  little,  if  any,  authority  on  this  question.  In 
6  Law  Mag.,  97,  may  be  found  printed  the  opinion  of  Mr.  E.  H.  William- 
son, of  Newcastle,  upon  the  following  case:  "A  farmer,  occupying  a 
farm  of  considerable  extent,  for  the  greater  facility  and  expedition  of 
threshing  the  corn  growing  upon  the  same,  erects  a  threshing-machine 
at  his  own  expense,  the  machinery  of  which  he  encloses  and  supports  by 
pillars  and  a  brick  wall  or  case,  and  covers  the  same  with  pantiles;  the 
pillars  and  wall  rest  upon  the  freehold,  and  the  wood,  that  supports  the 
roof  on  that  side  next  the  barn,  touches  or  rests  upon  the  roof  of  the 

176 


CHAP.  rV,]  AGRICULTURAL    FIXTURES.  *120 

barn.  Mr.  W.  will  please  give  his  opinion,  whether  the  tenant  can  legally 
remove  or  dispose  of  the  machine,  and  also  the  pillars,  walls  and  pantile 
roof,  to  and  for  his  own  use  and  benefit. 

"Opiniox. — I  am  of  opinion  that  the  tenant  cannot  justify  the  remov- 
ing the  pillars,  walls  and  pantile  roof.  With  respect  to  the  machinery, 
the  right  of  the  tenant  to  remove  it  may  depend  upon  the  fact,  whether 
it  is  or  is  not  fastened  to  the  walls,  or  pillars,  or  roof;  if  it  is  not  so 
fastened,  and  can  be'removed  without  breaking  the  walls,  pillars  or  roof, 
then  the  tenant  may  justify  its  removal;  but  if  otherwise,  the  case  of 
Elwes  V.  Maw,  3  East,  38,  appears  to  me  to  afford  an  authority  against 
the  tenant 's  right  to  remove  this  threshing-machine.  Newcastle,  Novem- 
ber 9,  1816.  E.  H.  W. "  The  correctness  of  this  opinion  is  disputed 
in  Gibbons  on  Fixtures,  page  29,  where  the  distinction  is  taken  between 
the  buildings  in  Elwes  v.  Maw,  and  such  threshing-machine,  which  was 
regarded  by  the  author  as  a  substitute  for  labor  and  an  implement  of 
trade.  ' '  Threshing  is  as  much  a  trade  as  drawing  coals  from  a  mine 
or  bruising  apples  in  a  mill.  The  true  distinction,  as  the  writer  takes  it, 
is  between  buildings  which  are  convenient  or  necessary  merely  to  the 
occupation  of  lands,  and  fixtures  which  are  assistant  to  the  tenant  in  his 
operations  of  skill  and  labor,  or  in  other  words,  his  trade. ' '  See,  also, 
Hill   Fixt.,   §   26. 

The  same  question  arose  in  the  circuit  case  of  Shinner  v.  Harman,  3 
Ir.  Com.  Law,  243  (Cork  Spring  Assizes,  1853,  coram  Ball) ;  but  the  case 
was  decided  upon  another  ground.  In  that  case  a  tenant  set  up,  on  the 
premises,  at  his  own  expense,  for  agricultural  purposes  alone,  a  thresh- 
ing-machine, and  erected  over  it  a  house  or  shed  for  preserving  and 
working  it  properly.  The  threshing-machine  was  set  up  in  the  following 
manner:  "A  large  round  stone  was  fixed  in  the  ground  outside  the 
house  which  was  built  for  the  threshing-machine,  through  which  four 
iron  bolts  were  passed  through  holes  in  the  stone  four  feet  apart;  these 
stood  perpendicularly,  and  were  fastened  at  one  end  into  the  stone,  and 
at  the  upper  end  there  were  nuts  which  screwed  on.  A  metal  frame 
was  then  placed  upon  the  stone,  through  which  these  four  bolts  passed, 
and  the  frame  was  then  secured  by  the  nuts  which  were  screwed  down 
on  the  iron  bolts.  This  frame  was  removable  by  unscrewing  the  nuts, 
without  destroying  or  injuring  tho  bolts  and  stones.  From  this  frame, 
a  shaft  of  iron  about  fourteen  feet  long,  called  the  spindle,  and  which 
worked  the  machinery  which  was  inside  the  house,  passed  through  a 
hole  in  the  wall,  but  was  not  in  any  way  connected  with  the  wall.  The 
machine  itself  was  inside,  and  was  fastened  by  wooden  pins  to  four  pieces 
of  timber  let  into  tho  ground  in  such  a  manner  that  by  taking  out  the 
pins  it  could  be  removed  without  injury  to  the  house  or  the  timber-work 
into  which  it  was  thus  inserted.  The  defendant,  also,  while  in  possession 
under  the  lease,  put  up  in  tlm  cnrnor  of  one  of  tho  out-houscs  on  the  de- 
mised premises,  a  steam  boiler  wliich  was  set  in  brickwork;  the  brickwork 
touched  both  walls,  and  was  built  on  the  floor;  the  boiler  was  set  in  the 
brickwork,  with  mortar,  but  in  such  a  manner  that,  by  removing  some  of 
12  177 


*121  THE  LAW  OF  FIXTURES.  [CH^P.  IV. 

The  question  in  England  has,  however,  been  settled  by  the 
[*121]  *interposition  of  Parliament— 14  &  15  Viet.,  Chap.  25, 
See.  3 — by  -which  the  rights  of  agricultural  tenants  to  fixtures 
erected  by  them  have  been  considerably  extended.^ 

the  bricks  of  the  front  wall,  the  boiler  could  be  removed  without  injury  to 
itself  or  the  out-house,"  In  this  case,  upon  the  authority  of  Culling  v. 
Tuffual,  Bull.  N.  P.,  34  (1694),  and  the  cases  following  it,  and  particularly 
Hellawell  v.  Eastwood,  6  Exch.,  295  (1851),  it  was  held,  the  threshing- 
machine  and  steam-boiler  were  not  fixtures,  but  removable  chattels  of  the 
tenant,  which  he  was  entitled  to  remove  at  the  end  of  his  term. 

In  delivering  his  opinion,  however,  Ball,  J.,  said:  "However,  it  is  to  be 
observed,  that  in  that  case  [referring  to  Elwes  v.  Maw],  the  erections  con- 
sisted of  buildings  having  their  foundations  sunk  in  the  soil,  and  therefore 
permanently  affixed  to  the  freehold,  and  incapable  of  being  removed  by  the 
tenant  without  being  utterly  destroyed.  Accordingly,  if  it  were  necessary 
for  me  to  decide  whether  the  case  of  Elwes  v.  Maw  were  an  authority  to 
rule  the  present,  I  should  have  to  consider  whether,  regard  being  had  to 
the  character  of  the  articles  which  were  removed  by  the  tenant  in  this 
case,  as  well  as  to  the  limited  extent  of  their  connection  with  the  build- 
ing, the  principle  upon  which  buildings"  [the  italics  are  the  judge's], 
"constructed  for  agricultural  purposes,  were  ruled  in  that  case  not  to 
be  removable  by  the  tenant,  was  applicable  to  the  case  now  before  me. 
However,  I  do  not  find  it  necessary  to  enter  upon  the  consideration  of 
that  matter,"  etc. 

See  the  cases  cited  ante,  in  this  chapter,  under  the  head  of  Mixed  Cases. 

[A  tenant  of  a  plantation  has,  under  the  generous  exceptions  in  favor 
of  tenants,  the  right  to  remove  a  cotton-gin,  condenser,  etc.,  placed  by 
him  upon  the  leased  premises;  and  a  purchaser  from  him  of  these  articles 
has  also  a  right  to  remove  them.  ' '  The  placing  of  gins,  condensers,  etc., 
on  plantations  cultivated  largely  in  our  staple  product,  cotton,  are  essen- 
tial to  the  preparation  and  manufacture  of  the  article  for  market,  and 
the  rights  of  tenants,  as  against  the  landlords,  are  not  to  be  doubted." 
McMath  V.  Levy,  74  Miss.,  450,  451    (1896).] 

1  This  statute,  which  does  not  extend  to  Scotland,  provides,  '  *  that  if  any 
tenant  of  a  farm  or  lands,  shall,  after  the  passing  of  this  act"  [July  24th, 
1851],  "with  the  consent  in  writing  of  the  landlord,  for  the  time  being, 
at  his  own  cost  and  expense,  erect  any  farm  building,  either  detached  or 
otherwise,  or  put  up  any  other  building,  engine  or  machinery,  either  for 
agricultural  purposes  or  for  the  purposes  of  trade  and  agriculture  (which 
shall  not  have  been  erected  or  put  up,  in  pursuance  of  some  obligation  in 
that  behalf),  then  all  such  buildings,  engines  and  machinery,  shall  be  the 
property  of  the  tenant,  and  shall  be  removable  by  him,  notwithstanding 
the  same  may  consist  of  separate  buildings,  or  that  the  same,  or  any  part 
thereof,  may  be  built  in,  or  permanently  fixed  to,  the  soil,  so  as  the  tenant, 
making  any  such  removal,  do  not  in  any  wise  injure  the  land  or  build- 

178 


CHAP.  IV,]  AGRICtTLTURAL    FIXTURES.  *122 

Manure. 

♦Questions  as  to  the  right  to  manure  as  between  the  [*122] 
landlord  and  tenant  may  properly  be  considered  in  this  con- 
nection. 

Manure,  under  some  circumstances,  and  as  between  some  par- 
ties, is  personal  property,  while  in  other  cases  it  is  a  part  of  the 
realty.^ 

ings  belonging  to  the  landlord,  or  otherwise  do  put  the  same  in  like  plight 
and  condition,  or  as  good  plight  and  condition,  as  the  same  were  in  before 
the  erection  of  anything  removed;  provided,  nevertheless,  that  no  t'enant 
shall,  under  the  provisions  last  aforesaid,  be  entitled  to  remove  any  such 
matter  or  thing  as  aforesaid,  without  first  giving  to  the  landlord  or  his 
agent,  one  month's  previous  notice,  in  writing,  of  his  intention  so  to  do; 
and  thereupon  it  shall  be  lawful  for  the  landlord  or  his  agent,  on  his 
authority,  to  elect  to  purchase  the  matters  and  things  so  proposed  to  be 
removed,  or  any  of  them,  and  the  right  to  remove  the  same  shall  thereby 
cease,  and  the  same  shall  belong  to  the  landlord;  and  the  value  thereof 
shall  be  ascertained  and  determined  by  two  referees,  one  to  be  chosen  by 
each  party,  or  by  an  umpire  to  be  named  by  such  referees,  and  shall  be 
paid,  or  allowed  in  account  by  the  landlord,  who  shall  have  so  elected 
to  purchase  the  same." 

[See    the    Agricultural    Holdings   Acts    subsequently   passed.] 

1  In  Carver  v.  Pierce,  Sty.,  66,  73  (1647)  ;  Aleyn,  32,  in  an  action  upon 
the  case,  it  was  held  that  the  words,  ' '  Thou  art  a  thief,  and  hast  stolen 
my  dung,"  were  actionable.  Boll,  J.:  "Dung  may  be  a  chattel,  and 
it  may  not  be  a  chattel ;  for  a  heap  of  dung  is  a  chattel,  but  if  it  be 
spread  upon  the  land  it  is  not."  This  proposition  was  approved  in  Ruck- 
man  V.  Cutwater,  28  N.  J.  L.,  584  (1860) ;  it  is  not,  however,  universally 
true.  See  Wetherbee  v.  Ellison,  19  Vt.,  379  (1847);  Sawyer  v.  Twiss,  26 
N.  H.,  347  (1853);  (post,  page  *305)  Vendor  and  Vendee,  where  the 
subject  is   more   fully   considered. 

In  Pinkham  v.  Geer,  3  N.  IT.,  484  (1826),  manure  lying  upon  the 
earth,  but  not  incorporated  with  the  soil,  was  held  to  be  personal  property, 
for  which  trover  would  lie  if  wrongfully  converted.  The  manure  in 
this  case,  however,  was  not  made  on  the  land  of  the  owner  thereof,  but 
on  the  land  of  another,  and  it  did  not  appear  that  such  other  made  any 
claim  to  it.  But  in  Sawyer  v.  Twisa,  26  N.  IT.,  345  (1853),  whore  the 
manure  was  made  on  a  farm  owned  and  occupied  by  the  defendant, 
and  was  lying  in  heaps  about  the  barn,  it  was  held  that  manure  mado 
upon  the  farm  in  the  ordinary  course  of  husbandry,  is  a  part  of  the  realty, 
and  cannot  be  attached  or  taken  on  execution  as  personalty  separately 
from   the  land.     [See,  post,  p.   *430.] 

In  TIaalpm  v.  Lockwood,  37  Conn.,  500  (1871),  manure  which  had  ac- 
cumulated in  a   frequented  public  street  of  a  borough,  where  the  fee  of 

170 


♦123  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

[*123]  *Notwithstanding  the  general  tendency  of  judicial 
opinion  in  the  United  States  towards  extending  the  doctrine  of 
trade  fixtures,  so  as  to  include  certain  erections  for  agricultural 
purposes,  it  seems  well  settled  that  manure^  made  by  a  tenant 
upon  a  farm  under  a  farming  lease  in  the  ordinary  course  of 
husbandry,  in  the  absence  of  any  special  contract  or  any  cus- 
tom to  the  contrary,  belongs  to  the  farm  as  an  incident  neces- 
sary for  its  improvement  and  cultivation,  and  is  the  property 
of  the  lessor,  subject  only  to  the  right  of  the  tenant  to  use  it 
during  the  term  in  the  cultivation  of  the  land,  and  the  ten- 
ant has  no  right  to  remove  or  dispose  of  it,  or  to  apply  it  to 
any  other  use,  either  during  or  after  the  expiration  of  his  ten- 
ancy .^     Where  the   landlord  is   allowed  to  hold  the  manure, 

the  street  belonged  to  the  borough,  was  raked  into  heaps  by  the  plaintiff 
in  the  evening,  and  left  in  that  condition  to  be  carried  away  by  him  the 
next  evening.  During  the  forenoon  of  the  next  day  the  defendant,  finding 
the  manure  in  heaps,  removed  it  to  his  own  land.  Held,  that  the  plaintiff 
might  recover  therefor  in  trover.  Synopsis  of  argument:  Manure  made 
in  the  usual  course  of  husbandry,  is  real  property  for  the  benefit  of  agri- 
culture; but  this  principle  does  not  apply  to  this  case.  This  manure 
scattered  upon  the  surface  of  the  ground,  was,  under  the  circumstances 
of  this  case,  personal  property.  It  belonged  originally  to  the  travelers 
whose  animals  dropped  it,  but  being  worthless  to  them,  was  immediately 
abandoned.  Whether  it  became  the  property  of  the  borough,  it  is  un- 
necessary to  determine,  as  its  removal  was  an  advantage  to  the  borough, 
and  no  one  objected;  and,  at  all  events,  plaintiff  had  a  right  to  the 
immediate  possession  as  against  a  mere  wrong  doer,  and  had  a  reasonable 
time  for  its  removal;  and  twenty-four  hours  is  considered  a  reasonable 
time. 

1  Straw  raised  on  a  farm  is  a  part  of  the  crop,  and  belongs  to  the 
owners  thereof,  and  does  not  necessarily  belong  to  the  farm;  nor  is  there 
any  general  usage  requiring  it,  like  manure,  to  be  used  on  the  land  where 
raised.     Fobes  v.  Shattuck,  22  Barb.,  568    (1854). 

2Middlebrook  v.  Corwin,  15  Wend.,  169  (1836);  Perry  v.  Carr,  44  N. 
H.,  118  (1862);  Lassell  v.  Eeed,  6  Me.,  222  (1829);  Gallagher  v.  Shipley, 
24  Md.,  427  (1865);  Daniels  v.  Pond,  21  Pick.,  367  (1838);  Plumer  v. 
Plumer,  30  N.  H.,  558  (1855);  Lewis  v.  Lyman,  22  Pick.,  442  (1839); 
Lewis  v.  Jones,  17  Pa.  St.,  262  (1851);  Sawyer  v.  Twiss,  26  N.  H.,  346 
(1853)  ;  Barrington  v.  Justice,  4  Pa.  Law  Journ.,  289  (1845).  See,  also, 
Hill  V.  De  Eochemont,  48  N.  H.,  87  (1868);  5  Ves.,  147,  260,  261;  16  Id., 
173;  2  Kent  Com.,  347;  Woodf.  Land.  &  T.  (10  Eng.  ed.),  550;  Brown 
V.  Crump,  1  Marsh.,  567  (1815);  Legh  v.  Hewitt,  4  East,  154  (1803). 
[Bonnell  v.  Allen,  53  Ind.,  130,  137  (1876).]  And  it  is  immaterial  that 
such   manure  is  lying  in  heaps   about   the  barn  and  in   the   farm-yard; 

180 


CHAP.  IV.]  AGRICULTURAL    FIXTURES. 


*123 


Lassell  v.  Eeed,  6  Me.,  222  (1829);  Sawyer  v.  Twiss,  26  N.  H.,  347 
(1853) ;  or,  that  it  is  made  from  hay  belonging  to  the  tenant,  where 
such  hay  was  raised  on  the  farm  demised,  and  where  the  rules  of  good 
husbandry  require  such  manure  to  be  expended  on  the  farm.  Wetherbee 
V.  ElUson,   19  Vt.,  379   (1847> — -' 

The  rule  in  North  Carolina  is  different  from  that  stated  in  the  text,  it 
being  there  held  that  an  out-going  tenant,  in  the  absence  of  contract  or 
custom  to  the  contrary,  may  remove  all  the  manure  made  on  the  farm  by 
him,  as  his  own  personal  property.  Smithwick  v.  Ellison,  2  Ired.  Law,  326 
(1842).  The  clear  weight  of  American  authority,  however,  is  opposed  to 
the  doctrine  of  this  case.  See,  however,  Euckman  v,  Outwater,  28  N.  J.  L., 
581    (1860). 

In  Staples  v.  Emery,  7  Me.,  201  (1831),  a  distinction  was  taken  between 
the  removal  of  manure  by  a  tenant  for  one  year,  or  a  tenant  for  years, 
at  the  end  of  his  term,  and  the  removal  thereof  during  a  year  preceding 
the  last  of  a  term  of  a  tenant  for  years ;  and  it  was  held,  that  the  manure 
in  the  barn-yard   of   a   farm  in   the   possession   of   a   tenant  at   will,   was 
liable   to   be   seized   during  the   continuance   of   his  tenancy,   and   sold   on 
execution  against  such  tenant  for  the  payment   of  his   debts.     Mellen,   C. 
J. :     "  Suppose  a  tenant  for  five  years  should  the  second,  third,  and  fourth 
years,  sell  all  the  manure  and  manage  the  land  without  any;   whose  loss 
would  it  be?     He  would  be  injuring  himself,   destroying   his   own  profits 
to  a  certain  extent,  and  rendering  himself  less  able  to  pay  the  rent.     Still, 
would  he  not  have  a  right  to  proceed  in  this  manner?     At  least,  might  he 
not  convert  it  to  his  own  use  in  this  imprudent  manner  without  being  a 
trespasser,  or  the  purchaser  being  liable  in  an  action  of  trespass  or  trover? 
And  has  the  owner  any  other  remedy  than  an  action  for  damages  for  bad 
husbandry  and  mismanagement  of  the  farm?     In  the  case  supposed,  the 
manure  is  a  part  of  the  annual  produce  of  the  farm,  and  as  such  belongs 
to   the  tenant,   and  might   be  attached   and   sold   on   execution,   to   satisfy 
the   debts   of   such   tenant,   without   rendering   the   officer   or   the   creditor 
a   trespasser.     That  is  to  say,   a  tenant,   as  in   the   case   supposed,   may 
injure  himself  and  impair  his  own  profits;  but  the  manure  of  the  season 
next  before  the  known   term  of  the  lease,  is  the  produce  of  that  season, 
and  designed  for  the  use  of  the  farm  the  following  season,  at  which  time 
the  owner  is  to  occupy  or  have  control  of  the  land,  as  in  the  above-men- 
tioned reported  case.     [Lassell  v.  Eeed,  6  Me.,  222  (1829).]     Now,  all  the 
observations  made  on  this  head  apply  to  the  lease  at  will  in  the  case  under 
consideration,"   etc.     No   authority   is  cited   by   the   court   to   sustain   this 
distinction;    and   it    is    difficult   to   understand    why    any    different    reason 
applies  to  the  last  than  to  a  prior  year  of  the  term,  or  why  what  is  bad 
husbandry   and   misinanagcniont   one   year,    should    not   be    equally   so    the 
last   year  of   the   term;    or  why,   if  the  manure   is   a   part   of   the   annual 
produce  of  the  farm,  and  as  such  belongs  to  the  tenant  one  year,  it  does 
not  also  belong  equally  to  him  the  last  year.     The  case  docs  not  seem   to 
have  been   followed  by  any  subsequent  case,  but  on  the  other  hand,  seems 
to  be  opposed  in  principle  by  the  cases  cited  at  the  beginning  of  this  note. 

181 


124  TUE  LAW  OF  FIXTURES.  [CHAP.  IV. 

[*12-l:j  *the  reason  for  the  rule  seems  to  be  the  fact  that  the  ma- 
uure  is  made  from  the  produce  of  the  farm,  and  to  allow  the  ten- 
ant to  remove  it,  would  tend  to  impoverish  the  farm,  it  being 
[*125]  im*plied  from  the  letting  of  a  farm  for  agricultural  pur- 
poses, that  the  tenant  will  cultivate  the  land  according  to  the 
rules  of  good  husbandry .^  But  where  the  manure  is  made  from 
produce  obtained  elsewhere,  and  is  not  so  commingled  that  its 
amount  cannot  be  ascertained;  or,  where  the  lands  are  not  ag- 
ricultural lands;  or,  the  manure  is  made  in  a  tenancy  not  con- 
nected with  agricnltnre,  as  in  a  livery  stable,  etc.,  no  such 
reason,  and  therefore  no  such  rule,  exists.^    And  where  a  lease 

1  See  Brown  v.  Crump,  1  Marsh.,  567  (1875) ;  Legh  v.  Hewitt,  4  East, 
154  (1803);  Lewis  v.  Jones,  17  Pa.  St.,  262   (1851). 

2  See  Carroll  v.  Newton,  17  How.  Pr.,  189  (1858);  Gallagher  v.  Ship- 
ley, 24  M(l.,  427  (1865);  Daniels  v.  Pond,  21  Pick.,  367  (1838);  Plumer 
v.'piumer,  30  N.  H.,  558  (1855);  Corey  v.  Bishop,  48  N.  H.,  146  (1868); 
Needham  v.  Allison,  24  N.  H.,  355  (1852).  [Nason  v.  Tobey,  182  Mass.,^ 
314,  315   (1902).] 

Thus,  a  tenant  of  a  house,  barn,  grocery,  and  garden,  who  uses  the  barn 
for  keeping  some  eighteen  or  twenty  horses,  is  entitled  to  the  manure, 
it  not  being  made  in  the  ordinary  course  of  husbandry,  and  being  made 
from  his  own  fodder,  and  he  may  sell  or  remove  the  same  as  against  his 
landlord.  Carroll  v.  Newton  (supra).  See,  also,  Corey  v.  Bishop  (supra). 
And  manure  made  under  such  circumstances,  and  thrown  in  piles  by 
itself,  may  be  removed  either  during  or  after  the  tenancy  as  personal  prop- 
erty. "It  would  not  stand  upon  the  ground  of  an  article  of  property 
aflEixed  to  the  freehold  by  the  tenant  during  his  term,  which  he  might 
remove  before  the  term  expired,  if  he  could  without  injury  to  the  free- 
hold, but  not  afterwards;  but  would  more  nearly  resemble  the  building 
built  on  land  of  another,  with  the  consent  of  the  owner  of  the  land,  and 
to  be  removed  at  the  pleasure  of  the  owner  of  the  building.  It  being 
the  plaintiff's  chattel  on  the  land  of  another  with  his  permission,  plaintiff 
might  enter  at  any  time  and  remove  it.  If,  after  he  should  be  notified  to 
remove  it,  he  did  not  do  so  in  a  reasonable  time,  he  might  be  liable  for 
trespass  for  the  entry  to  remove  it,  otherwise  he  would  not  be.  Dame  v. 
Dame,  38  N.  H.,  429;"  Corey  v.  Bishop  (supra).  See,  also,  Fletcher  v. 
Herring,  112  Mass.,  382  (1873).  See,  however,  Smithwick  v.  Ellison,  2 
Ired.  Law,  329  (1842).  And  if  the  lessor  during  the  continuance  of  such 
tenancy,  sell  and  convey  the  land  on  which  such  manure  is  situated  to  a 
third  person  having  notice,  but  without  reserving  the  manure,  the  pur- 
chaser cannot  hold  such  manure.     Corey  v.  Bishop   (supra). 

[Where  a  tenant  kept  hogs  in  a  barn-cellar  and  a  yard  adjoining,  which 
were  not  fed  upon  the  produce  of  the  farm,  he  is,  after  the  expiration  of 

182 


CHAP.  IV.]  AGRICULTURAL   FIXTURES.  *126 

*of  farming  land  is  general  in  its  provisions  and  terms,  [*126] 
and  says  nothing  as  to  the  purpose  for,  or  the  mode  in  which  the 
lessee  is  to  use  or  occupy  the  demised  premises,  the  lessee  is 
clothed  with  the  right  to  occupy  and  use  the  land  for  any  lawful 
purpose  not  injurious  to  the  reversion ;  and  where  under  such  a 
lease  the  land  is  used  for  other  than  agricultural  purposes,  the 
rule  governing  a  farming  lease  is  not  applicable,  and  the  ten- 
ant may  remove  the  manure  so  far  as  it  is  not  commingled 
with  the  soil,  provided  he  exercises  this  right  with  such  care 
and  skill  as  to  prevent  injury  to  the  land.^ 

the  tenancy,  entitled  to  the  manure  as  against  a  grantee  with  notice. 
Snow  V.  Perkins,  60  N.  H.,  493   (1881).] 

[Where  the  grantor  took  from  his  grantee  a  lease  of  the  buildings 
upon  the  land,  in  which  buildings  was  a  quantity  of  fodder  belonging  to 
the  grantor,  and  which  he  might  have  removed,  the  manure  made  from 
such  fodder  belongs  to  the  tenant.  His  rights  are  the  same  as  they 
would  have  been  if  he  had  purchased  the  fodder.  Taylor  v.  Newcomb, 
123  Mich.,  637    (1900).] 

In  Lassell  v.  Eecd,  6  Me.,  222  (1829),  some  of  the  hay  used  in  the 
production  of  the  manure  was  purchased  and  carried  upon  the  farm  by 
the  tenant,  and  the  residue  was  cut  on  the  farm;  and  the  court,  yer 
Mellen,  C.  J.,  observed  that  they  did  not  consider  the  case  in  any  way 
changed  by  the  fact  that  a  part  of  the  fodder  was  carried  on  to  the  farm 
by  the  tenant.  In  this  case,  however,  it  does  not  appear  that  the  manure 
made  therefrom  was  kept  separate  from  that  produced  from  the  fodder 
raised  on  the  farm,  and  hence  the  case  does  not  seem  to  be  an  authority 
opposed  to  the  statement  in  the  text.  See,  also,  Lewis  v.  Jones,  17  Penu. 
St.,  262  (1851),  where  it  was  held,  that  the  fact  that  the  tenant  had 
bought  some  hay  and  some  grain  not  raised  on  the  premises,  without 
specifying  how  much,  did  not  alter  the  case,  especially  where  the  manure 
made  therefrom  was  commingled  with  that  made  from  the  produce  of  the 
farm.     The  doctrine  of  confusion  of  goods  properly  applies  to  such  a  case. 

■[Manure  made  updii  ;i  f;irin  ])y  tlu;  consumption  of  its  products  in  the 
ordinary  course  of  husbandry  is  a  part  of  the  realty,  and  can  not  bo  sold 
nor  carried  away  by  a  tenant;  but  it  is  otherwise  as  to  manure  where  the 
fodder  is  purchased  or  raised  by  the  tenant  upon  other  lands.  And  if  the 
two,  being  of  the  same  quality  and  valiio,  are  intermingled  by  t1ie  tenant 
with  no  wrongful  intent,  he  docs  not  lose  ownership  of  his  proportion. 
Pickering  v.  Moore,  67  N.  H.,  533,  534   (1893).] 

1  Gallagher  v.  Shipley,  24  Md.,  418  (1865).  In  this  case,  under  such  a 
lease,  the  land  was  used  as  a  corral  or  pen  for  herding  largo  numbers  of 
cattle  brought  thither  to  be  slaughtered  for  use  in  the  armies  of  the 
ITnitod  States,  and  fed  with  provondcr  brought  from  sources  foreign  to 
the  land,  and  it  was  held,  that  the  tenant  might  remove  the  manure  there-- 

183 


*127  THE  LAW  OP  FIXTURES.  [CHAP.  IV. 

While,  as  has  already  been  observed,  without  any  stipula- 
tion therefor,  it  is  implied  from  the  letting  of  a  farm  for 
agricultural  purposes,  that  the  tenant  will  cultivate  the  land 
according  to  the  rules  of  good  husbandry,  which  requires,  as 
hereinbefore  stated,  that  the  manure  made  during  an  agricul- 
tural tenancy  should  be  used  on  the  land,  still,  the  known 
usages,  customs  and  practice  of  the  neighboring  country,  often 
form  important  factors  in  determining  this  question,  the 
parties,  in  the  absence  of  an  express  stipulation  on  the  subject, 
being  supposed  to  contract  with  reference  thereto.^  The  de- 
termination of  the  question,  as  to  whatsis  good  husbandry, 
[*127]  *may,  perhaps,  also  be  affected  by  varying  conditions  as 
to  situation,  soil,  climate,  etc. ;  but  in  the  absence  of  the  above 
specified  local  causes,  or  special  contracts  on  the  subject  vary- 
ing the  application  of  the  foregoing  rules  on  the  subject  of  the 
right  to  manure  as  between  landlord  and  tenant,  such  rules  are 
believed  to  be  a  correct  exposition  of  the  law  on  this  subject.^ 

III.     Fixtures  set  up  for  the  Purposes  of  Ornament  or 
Convenience,  or  for  Domestic  Use, 

Domestic  fixtures  have  been  defined  by  Mr.  Gibbon  to  be 
"those  articles  which  a  tenant  fixes  in  his  dwelling  house,  in 
order  to  render  his  occupation  more  comfortable  or  more  con- 
venient ; "  ■*  and  have  been  divided  by  the  same  author  into  two 
classes :  those  which  are  useful  and  those  which  are  ornamental.^ 
This  definition,  while  correct  in  its  terms  so  far  as  it  extends, 
does  not  seem  sufficiently  comprehensive  to  include  all  the  cases 

by  made,  so  far  as  it  was  not  commingled  with  the  soil,  provided  he  exer- 
cised the  right  with  such  care  and  skill  as  to  prevent  injury  to  the  land. 
[See  Gardner  v.  Perry,  39  Can.  Law  J.,  670  (Ont.,  1903).] 

2  See  Middlebrook  v.  Corwin,  15  Wend.,  170  (1836);  Euckman  v.  Out- 
water,  28  X.  J.  L.,  587  (1860);  Eoberts  v.  Barker,  1  Cr.  &  M.,  808 
(1833);   S.  C,  3  Tyrwh.,  945. 

3  See,  on  the  subject  of  the  influence  of  custom,  Wigglesworth  v.  Dalli- 
son,  Doug.,  201  (1779);  Webb  v.  Plummer,  2  B.  &  Aid.,  746  (1819); 
Eoberts  v.  Barker,  1  Cr.  &  M.,  808  (1833) ;  s.  c,  3  Tyrwh.,  945;  1  Smith's 
Lead.  Cas.,  670,  et  seq. 

4  Gibb.  Fixt.,  32. 

5  Gibb.  Fixt.,  33. 

184 


CHAP.  IV.]         ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *128 

usually  classed  under  this  head ;  and  the  subject  is  usually  under- 
stood to  include  annexations  (other  than  trade  or  agricultural 
fixtures)  made  by  a  tenant  to  his  dwelling  house  or  other  de- 
mised premises,  for  the  ^purpose  of  ornament  or  to  render  his 
occupation  of  the  premises  more  convenient.^ 

The  grounds  upon  which  fixtures  of  this  class  are  allowed 
to  be  removed  by  the  tenant  during  his  term,  are  that  they  are 
annexed  by  him  for  the  temporary  purpose  of  ornament  or 
convenience  only,  while  he  occupies  the  premises,  and  are  not 
intended  as  a  permanent  accession  to  the  realtyJ  Any  rule 
that  a  mere  temporary  attachment  to  the  freehold  would  in  all 
*cases  have  the  effect  of  changing  the  title  of  such  ar-  [*128] 
tides  of  ornament  or  convenience  (which  often  are  of  no  utility 
without  such  annexation)  would  work  the  greatest  hardship  and 
inconvenience  to  tenants,  and  would  be  productive  of  no  real 
benefit  to  the  landlords  themselves. 

It  may  be  here  observed  that  the  exception  in  favor  of  the 
tenant's  right  of  removing  fixtures,  as  against  his  landlord,  is 
not  so  liberally  applied  in  this  class  of  ca^es,  as  in  the  case  of 
trade  fixtures,^  not  only  on  account  of  the  absence  of  the  strong 
grounds  of  public  policy  before  alluded  to,  but,  perhaps,  also 
because  the  purpose  for  which  trade  fixtures  are  made,  their 
value  as  compared  with  the  realty,  etc.,  furnish  additional  and 
greater  evidence  of  intention  not  to  make  their  annexation  per- 
manent. 

In  order  to  determine  whether  in  any  particular  case  annex- 
ations are  removable  by  the  tenant,  as  coming  within  this  class 
of  fixtures,  a  variety  of  considerations  are  to  be  regarded.  The 
mode  of  annexation  of  the  articles  in  question,  and  the  extent 
to  which  they  are  united,  whether  they  can  be  taken  down  and 

6  See  Wall  v.  Himls,  4  Gray,  271  (1855);  Ferard  Fixt.,  71;  Hill  Fixt., 
§  29;  Grady  Fixt.,  30,  85. 

[This  definition  would  seem  to  be  applicable  to  an  office  room  as  to  a 
dwelling-house.     Hayford   v.  Wentworth,  97   Me.,   347,   353    (1903).] 

T  See  Gibson  v.  Hammersmith,  &c.,  Railway  Co.,  2  Dr.  &  Sm.,  609 
(1862);  Seeger  v.  Pcttit,  77  Pcnn.  St.,  440   (1875);   Ferard  Fixt.,  8.3. 

8  Whitehead  v.  Bennett,  27  L.  .7.  (N.  S.),  Ch.,  475  (1858);  s.  c,  6  W. 
R.,  351;  Van  Ness  v.  Pacard,  2  Pet.,  143  (1829) ;  2  Kent  Com.,  345.  [See, 
ante,  p.  *90,  and  Allan  v.  Rowe,  1  N.  Brunsw.  Eq.  (Truoman).  41,  45 
(1894).     But  see  Hayford  v.  Wentworth.  97   Me.,   347,   349    (1903).] 

185 


*129  THE  I  AW  OP  FIXTURES.  [CHAP.  IV. 

romoved  intcgre,  salve  et  commode,  "without  substantial  injury 
to  the  realty  or  to  themselves,  and  the  purposes  which  they 
were  desijrned  to  answer,  are  important  as  tending  to  throw 
lijrht  upon  the  intention  with  which  they  were  annexed,  the 
main  question  being  whether  they  were  intended  for  a  perma- 
nent accession  to  the  realty,  pcrpetui  usus  causa,  or  ptir  un 
profit  del'  enheritance,  or  whether  they  were  put  up  and  used 
for  a  temporary  object,  or  for  the  more  convenient  occupation 
and  enjoyment  of  the  premises  for  the  particular  purposes  for 
which  they  were  used,  so  that  they  were  useful,  and  necessary, 
rather,  to  the  comfortable  and  convenient  occupation  of  the 
buildiuy:,  than  to  the  building  itself.^ 

Permanent  additions  to  the  estate,  so  united  to  the  house  as 
materially  to  impair  it  if  removed,  or  so  firmly  annexed  to 
the  estate  as  to  be  incapable  of  removal  without  receiving 
[*129]  *substantial  injury  or  destruction  themselves,  may  not  be 
removed  by  the  tenant,  though  annexed  by  him  at  his  own  ex- 
pense, and  for  purposes  of  ornament  or  convenience.^^     In  such 

9  See  Wall  v.  Hinds,  4  Gray,  271  (1855);  also,  Bircher  v.  Parker,  40 
Mo.,  120   (1867). 

10  2  Kent  Com.,  3-14.  Buckland  v.  Butterfield,  2  Brod.  &  B.,  54  (1820), 
is  a  good  example  of  the  doctrine  above  stated.  In  this  case  a  conserva- 
tory was  purchased  by  a  tenant  for  years  (who  also  had  a  remainder  for 
life,  after  the  death  of  the  lessor,  his  mother),  and  brought  from  a  dis- 
tance and  erected  upon  a  brick  foundation  fifteen  inches  deep;  upon  that 
was  bedded  a  sill,  over  which  was  frame-work  covered  with  slate;  the 
frame-work  was  eight  or  nine  feet  high  at  the  end,  and  about  two  feet 
in  front.  This  conservatory  was  attached  to  the  dwelling  house  by  eight 
cantalivers  let  nine  inches  into  the  wall,  which  cantalivers  supported  the 
rafters  of  the  conservatory.  Eesting  on  the  cantalivers  was  a  balcony  with 
iron  rails.  The  conservatory  was  constructed  with  sliding  glasses,  paved 
with  Portland  stone,  and  connected  with  the  parlor  chimney  by  a  flue. 
Two  windows  were  opened  from  the  dwelling  house  into  the  conservatory, 
one  out  of  the  dining-room,  another  out  of  the  library,  A  folding-door 
was  also  opened  into  the  balcony;  so  that  when  the  conservatory  was 
pulled  down  by  the  assignees  in  bankruptcy  of  the  tenant,  that  side  of  the 
bouse  to  which  it  had  been  attached  became  exposed  to  the  weather.  Held, 
that  the  conservatory  in  question  was  a  part  of  the  freehold,  and  for  its 
removal  an  action  on  the  case  in  the  nature  of  waste  lay.  The  annexation 
in  this  case  seems  to  have  been  made  an  integral  and  essential  part  of 
the  dwelling,  and  was  undoubtedly  intended  to  be  permanent. 

In  Jenkins  v.  Gething,  2  John.  &  Hem.,  520  (1862),  the  buildings  were 
somewhat  similar  to  those  in  Buckland  v.  Butterfield,  which  was  followed 

186 


CHAP.  IV.]         ORNAMENTAL   AND   DOMESTIC    FIXTURES.  *129 

as  furnishing  the  rule  of  decision.  The  buildings  in  this  case  were  (1)  a 
green-house  and  hot-house  forming  one  building,  standing  on  foundation 
walls  built  into  the  ground,  to  which  the  upper  frame-work  was  attached 
in  the  usual  way  by  a  course  of  mortar;  there  was  a  dividing  wall  of  brick 
between  the  green-house  and  hot-house;  (2)  a  green-house  or  nursery 
similarly  constructed;  (S^ — various  pits  formed  by  wooden  frame-work 
affixed  with  mortar  to  low  brick  foundations  in  the  same  way  as  the 
green-houses;  (4)  a  boiler  built  into  the  floor  of  the  green-house,  with  a 
system  of  heating-pipes  connected  with  it  by  screws.  Held,  that  they 
were  all  irremovable  fixtures  except  the  heating-pipes,  which  were  likened 
to  gas-fittings,  and  were  said  hardly  to  be  considered  as  adjuncts  of  the 
boiler,  and  hence  removable. 

[A  conservatory,  green-house  and  hot-house  are  not  removable,  but  the 
boilers,  pipes  and  zinc  troughs  for  heating  the  same,  are.  Gardiner  v. 
Parker,  18  Gr.  Ch.,  26    (Ont.,   1871).] 

[In  Ferguson  v.  Paul  (1885),  22  Scot.  Law  Kep.,  809,  a  right  to  remove 
very  substantial  green-houses  was  implied  from  the  fact  that  the  lease 
required  the  tenant  to  replace  any  trees  removed  by  him,  and  the  tenant 
had  removed  a  number  of  fruit  trees  to  erect  the  green-houses,  which  could 
not  be  replaced  without  removing  the  green-houses.] 

In  a  case  where  issue  was  joined  upon  an  allegation  in  the  plaintiff 's 
replication,  that  a  cornice  was  ' '  fixed  and  plastered  to  the  wall  of  the  said 
room,  and,  before  the  time  when  the  same  was  so  pulled  down  and  re- 
moved, had  become,  and  was  at  that  time  affixed  to  the  freehold  of  the 
dwelling  house,  and  was  not  at  the  time  when  the  same  was  so  pulled 
down  and  removed,  removable  by  law  and  of  right  by  the  defendant  as 
such  tenant,  etc.,"  the  defendant  having  alleged  that  the  cornice  was  a 
wooden  cornice,  put  up  by  him  with  screws,  only  for  the  purpose  of  orna- 
ment, and  by  him  whilst  in  occupation  of  the  premises,  carefully  and 
skillfully  unscrewed  and  removed,  etc.,  the  judge  desired  the  jury  to  say 
"whether  the  cornice  was  merely  a  matter  of  ornament,  fixed  during  the 
tenancy,  capable  of  removal  without  doing  substantial  injury  to  the  free- 
hold, and  so  removed  in  fact  during  the  tenancy;  and  said  that  in  that 
case  their  verdict  should  be  for  the  defendant,"  it  was  held  (the  jury 
having  found  for  the  plaintiff),  to  be  no  misdirection.  Avery  v.  Cheslyn, 
3  Ad.  &  E.,   75    (1835). 

See,  also,  Tayl.  Land.  &  T.,  §  550;  2  Smith's  Lead.  Cas.,  258,  et  seq.; 
1  Wash.  Real.  Prop.,  114;  Whiting  v.  Brastow,  4  Pick.,  310  (1826); 
Stockwell  V.  Marks,  17  Me.,  455  (1840),  where  a  furnace  had  been  erected 
by  a  tenant  for  warming  the  house,  thereby  making  a  material  alteration 
of  the  building  in  many  parts  of  its  interior  arrangement;  Powell  v.  Mc- 
Aslian,  28  Mo.,  70  (1859).  [See  Rooney  v.  Stearns,  17  N.  Y.  Weekly 
Dig.,  322,  323   (1883).] 

[Elevators,  steam  plant,  radiators,  plate  glass,  marble  staircase,  and 
marble  wainscoting  are  not  removable.  Palmer  v.  Young,  108  III.  App., 
252,  257   (1903).] 

[A  house  belonging  to  a  landlonl,  moved  by  a  tenant  and   permanently 

187 


*130  THE  LAW  OF  FIXTURES.  [CIIAP,  IV. 

[*130]  *a  case  the  permaueut  nature  of  the  annexation  and  the 
fact  that  it  cannot  be  removed  without  substantial  injury  to  the 
house,  or  to  itself,  ordinarily  aiVords  satisfactory  evidence  of 
an  intention  to  make  the  annexation  a  permanent  accession  to 
the  realty.  No  general  rule,  however,  can  be  laid  down  for 
the  decision  of  all  cases,  but  every  case  must  depend  on  its 
special  and  peculiar  circumstances,^  the  question  in  each  case 
being  a  mixed  one  of  law  and  fact.-  An  ordinary  and  clear 
application  of  the  principle  above  stated,  is  made  in  the  case  of 
glass  fixed  by  a  tenant  in  the  windows  of  the  demised  prem- 
ises. "If  glasse  windows  (tho'  glased  by  the  tenant  hiraselfe), 
be  broken  down,  or  carried  away,  it  is  wast,  for  the  glasse  is 
part  of  his  house.  "^  The  same  rule  has  been  applied  to  the 
outer  door  and  cheek  posts  of  a  house^  added  by  a  tenant  dur- 

affixed  to  the  leased  farm,  does  not  cease  to  he  the  landlord's  property, 
and  is  a  part  of  the  real  estate;  and  permanent  improvements  to  the 
house,  made  by  the  tenant,  are  also  a  part  of  the  real  estate,  and  title 
thereto  vested  in  the  landlord  as  soon  as  made,  and  a  mechanics'  lien  can 
only  attach  to  the  leasehold  interest.  Moore  v.  Vaughn,  42  Neb.,  696, 
700   (1894).] 

1  Per  Dallas,  C.  J.,  in  Buckland  v.  Butterfield,  2  Brod.  &  B.,  54,  58 
(1820).    See,  also,  ante,  p.  *24. 

2  See  ante,  p.  *24;  Avery  v.  Cheslyn,  3  Ad.  &  E.,  75  (1835);  Leach  v. 
Thomas,  7  C.  &  P.,  327  (1835).  [Hayford  v.  Wentworth,  97  Me.,  347, 
351   (1903).] 

3  Co.  Lit.,  53  a;  Herlakenden 's  Case,  4  Co.,  63  b  (1589);  Warner  v. 
Fleetwood  (1599),  cited  in  Herlakenden 's  Case.  See,  also,  Moore,  178. 
Where  the  landlord  lent  the  tenant  a  window  to  be  put  into  a  temporary 
partition,  and  the  tenant,  excepting  the  window,  sold  the  fixtures  to  the 
next  tenant,  it  was  held,  that  the  window  was  the  property  of  the  land- 
lord, who  could  maintain  trover  for  it.  Loveridge  v.  Schultz,  Gen.  Term, 
June,  1857.  Supr.  Ct.  of  Bufifalo,  2  Clint.  Dig.,  p.  1415,  pi.  43.  Whether 
windows,  placed  by  a  tenant  at  will  in  a  demised  house  and  fitted  to  their 
places,  may  be  removed  by  the  tenant,  ^waere.  State  v.  Elliot,  11  N.  H., 
543  (1841).     [See  Harrison  v.  Smith,  19  Nova  S.,  516  (1887).] 

[Where  a  tenant  finds  no  sash  in  two  windows  when  he  goes  into 
occupancy  of  the  house,  and  borrows  sash  which  he  fastens  by  a  strip 
held  by  shingle  nails  driven  about  half  up  into  the  wood,  can  he  remove 
such  sash  just  before  the  expiration  of  his  lease,  for  the  purpose  of  re- 
turning them  to  the  lender,  quaere.  State  v.  Whitener,  93  N.  C,  590,  594 
(1885).] 

[In  Gardiner  v.  Parker,  18  Gr.  Ch.,  26,  30  (Ont.,  1871),  it  was  said 
that  if  a  conservatory,  green-house  and  hot-house  were  not  removable  the 

188 


CHAP,  IV.]         ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *131 

ing  his  tenancy.^  The  true  distinction  seems,  as  stated  in 
♦Poole's  Case,5  to  be  whether  the  annexation  was  or  w^as  [*131] 
not  made  to  complete  the  house ;  if  made  to  complete  the  house, 
or,  in  other  words,  as  a  permanent  accession  thereto,  it  may  not 
be  removed.  The  application  of  the  rule  to  hearths  and  chim- 
ney-pieces (stated  in  tliat  case  not  to  be  removable),  has,  how- 
ever, since  been  disapproved;  and  it  is  now  quite  generally 
considered  that  ornamental^  chimney  pieces  put  up  by  a  ten- 
ant, are  removable  by  him  during  his  term,  and  this  is  said  to 
be  no  injury  to  the  landlord,  for  the  tenant  leaves  the  premises 
in  the  same  state  in  which  he  found  them,  and  the  tenant  is 
benefited."^  The  removal  of  such  articles  may  doubtless  be 
justified  on  the  ground  of  their  being  considered  as  a  sort  of 

glass  roofs  were  not,  although  they  were  formed  by  panes  resting  upon 
the  rafters,  and  easily  taken  out  without  injuring  the  framework.  The 
rule  as  to  windows  was  held  to  apply.] 

4  Cook's  Case,  Moore,  177  (1582);  a  distinction  was,  however,  made  in 
this  case  between  inner  and  outer  doors,  the  former  being  considered  as 
removable,  as  being  less  necessary  to  the  house,  while  the  latter  were  con- 
sidered necessary  as  a  defense  to  the  frank  tenement.  See  State  v.  Elliot, 
11  N.  H.,  543   (1841). 

5  1  Salk.,  368   (1703). 

oin  Leach  v.  Thomas,  7  C.  &  P.,  327  (1835),  it  was  held,  that  an  out- 
going tenant  might  remove  an  ornamental  chimney-piece,  put  up  by  him 
during  the  tenancy,  but  not  a  chimney-piece  which  was  not  ornamental. 
Patterson,  J.:  "With  respect  to  the  chimney-piece,  the  only  question  is, 
whether  it  was  an  ornamental  chimney-piece  or  not,"  and  whether  orna- 
mental or  not  was  left  to  the  jury. 

This  distinction  between  chimney-pieces  that  are  ornamental  and  those 
that  arc  not  so,  has  since  been  confirmed  by  the  Court  of  Exchequer 
Chamber,  in  Bishop  v.  Elliot,  11  Exch.,  113  (1855);  s.  C,  1  Jur.  (N.  S.), 
962;  24  L.  J.  (N.  S.),  Exch.,  229,  where  the  cases  on  the  subject  are  fully 
considered.  See  the  same  case  in  the  Court  of  Exchequer,  reported  in  10 
Exch.,  496;  24  L.  J.  (X.  S.),  Exch.,  33.  A  fire-framo,  fixed  in  a  common 
fire-place,  with  brick  laid  in  between  the  sides  of  the  frame  and  the  jambs 
of  the  fire-place,  the  facing  being  plastered  over,  is  a  removable  fixture. 
Gaffield  v.  Ilapgood,  17  Pick.,  192   (1835). 

7  Per  Lord  Mansfield,  in  Lawton  v.  Salmon,  1  H.  Bl.,  259,  note  (1782)  ; 
s.  c,  3  Atk.,  16,  note;  per  Lord  Hardwicko,  in  Ex  parte  Quincy,  1  Atk., 
477  (1750);  Dudley  v.  Warde,  1  Ambl.,  113  (1751),  per  Dallas,  C.  J.,  in 
Buckland  v.  Butterfield,  2  Brod.  &  B.,  58  (1820);  per  Lord  Eilcnborough, 
in  Elwcfl  V.  Maw,  3  East,  38  (1802);  Bishop  v.  Elliot,  11  Exch.,  113 
(1855);  s.  c,  1  Jur.  (N.  S.),  962;  24  L.  J.  (N.  S.),  Exch.,  229. 

189 


*132  THE  LAW  OF  F1XTURE6.  [CHAP.  IV, 

furniture,^  removable  without  injury  to  the  premises.  It  was 
said  by  Lord  Hardwicke,  in  Lawton  v.  Lawton,*^  that  wainscot, 
[*132]  *fixed  only  by  screws,  might  be  removed  by  a  tenant  dur- 
ing his  term;  and  subsequently  in  Ex  parte  Quincy,^"^  he  affirmed 
its  removability,  without  any  qualification  as  to  the  manner  of 
annexation,  though  he  stated  that  this  was  a  very  strong  case. 
It  is,  however,  affirmed  by  Lord  Coke,  that  wainscot  annexed 
or  fixed  to  the  house  by  a  tenant,  is  not  removable  ;^  ^  and  unless 
evidently  fixed  for  a  temporary  purpose,  such  would  seem  to  be 
the  better  opinion,  though  the  question  would  properly  be  one 
of  fact  upon  the  intention  of  the  tenant  to  make  a  permanent 
annexation,  and  hence  properly  belong  to  the  jury  under  proper 
instructions  as  to  the  law  from  the  court.^^  The  same  remark 
will  apply  to  many  of  the  earlier  cases  of  annexations,  about 
which  there  has  been  such  a  difference  of  opinion  among  courts 
and  writers,  though  there  are  many  cases  so  clearly  upon  the 
one  side  or  the  other  of  this  disputed  line,  that  a  jury  ought 
to  find  no  difficulty,  and  indeed  it  would  be  their  duty,  under 
the  instruction  of  the  court,  to  find  such  articles  irremovable 
or  removable,  according  to  which  side  of  said  line  of  dispute 
the  case  in  question  lies;  and  in  such  cases,  cases  upon  the 
subject  already  decided  might  perhaps  throw  some  light  upon 
the  question,  though  even  then  the  difference  seems  to  be  one 
of  degree  rather  than  of  principle.  In  the  earlier  cases,  the 
question  of  removability  seems  often  to  have  been  decided  as 
one  of  pure  law  for  the  court;  this  is  believed  to  be  erroneous 
(except,  perhaps,  in  cases  where  there  is  no  dispute  about  the 
facts),  and  to  have  been  one  of  the  fruitful  causes  of  the  con- 
trariety and  contradiction  to  be  found  in  the  decided  cases  on 
the  subject  of  fixtures. 

8  See  post,  where  this  sort  of  annexation  is  further  considered. 

»3  Atk.,  15  (1743).  See,  also,  Ehves  v.  Maw,  3  East,  38  (1802);  Lee 
V.  Eisdon,  7  Taunt.,  191  (1816)  ;  Buckland  v.  Butterfield,  2  Brod.  &  B., 
58   (1820). 

10  1  Atk.,  477  (1750).  See,  also,  Bridgeman's  Case,  1  Eoll.  Eep.,  216, 
pi.  14    (1615). 

"Co.  Lit.,  .53a;  Herlakenden 's  Case,  4  Co.,  64a  (1589).  [See  Palmer 
V.  Young,  108  111.  App.,  252,  257   (1903).] 

12  When  fixed  with  screws  for  a  temporary  purpose,  it  may  doubtless  be 
removed.     See  cases  cited,  supra,  note  9. 

190 


CHAP.  IV,]         ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *133 

No  two  cases  can  be  found  exactly  similar  in  their  facts,  and 
to  endeavor  to  place  the  doctrine  of  stare  decisis,  as  regards 
this  subject,  so  entirely  upon  the  basis  of  similarity  in  the 
method  of  annexation,  as  seems  to  have  been  done  by  many 
judges  and  writers,  can  only  lead  to  increased  uncertainty  and 
♦contradiction.  The  only  way  out  of  the  present  con-  [*133] 
fusion  on  this  subject,  seems  to  be  to  adhere  more  closely  to  the 
maxim  ad  quaestionem  faxMiwn  respondent  judices,  ad  question- 
em  legis  non  respondent  juratores,^^  and  to  leave  the  questions 
of  fact  in  cases  at  law,  as  to  the  intention  of  the  tenant  in  making 
the  annexation,  whether  to  make  a  permanent  accession  to  the 
realty,  or  for  the  mere  temporary  purposes  of  ornament,  etc., 
to  be  determined  by  the  jury,  who  may,  in  determining  that 
question,  resort  to  all  the  lights  to  be  derived  from  the  relation 
of  the  parties,  the  mode  and  extent  of  the  annexation,  whether 
removable  without  injury  to  the  realty,  etc.,  and  who  should, 
in  making  such  investigation,  act  under  instructions  from  the 
court  as  to  the  policy  of  the  law  respecting  the  particular  rela- 
tion existing  between  the  parties,  and  such  other  general  rules 
of  law  as  are  applicable  to  the  question. 

Without  the  aid  of  a  special  contract,  the  law  imposes  no 
ol)ligation  on  the  landlord  to  pay  his  tenant  for  buildings  erected 
on  the  demised  premises.  The  innovation  upon  the  common 
law  rule  that  all  buildings  become  a  part  of  the  freehold,  has 
extended  no  further  than  the  right  of  removal  while  the  ten- 
ant is  in  possession,  and  has  never  been  extended  to  give  a 
right  of  action  against  the  landlord  for  their  value.^-*  We  have 
already  seen  that  houses  built  by  a  tenant  solely  or  principally 

1^  Broom  Leg.   Max.,  99. 

i^Kulter  V.  Sniitli,  L'  Wall.,  491  (1864).  See  C.  C.  La.  Art.,  2697,  and 
the  cases  cited  post,  in  this  chapter,  [Jones  v.  Hoard,  59  Ark.,  42  (1894) ; 
Gocio  V.  Day,  5\  Ark.,  46,  48  (1888);  Mull  v.  Graham,  7  liul.  App.,  561, 
.•562  (1893);  Mullen  v.  Pugh,  16  Ind.  App.,  337,  340  (1896);  Gudgell  v. 
Duvall,  27  Ky.,  229,  230  (1830);  Guthrie  v.  Guthrie,  78  S.  W.,  474  (Ky., 
1904);  Konerson  v.  Colgan,  164  Mass.,  166,  168  (1895);  McAllister  v. 
Reel,  59  Mo.  App.,  70,  74  (1894);  Wilson  v.  ScruggH,  75  Tcnn.,  635,  640 
(1881);  Ilintze  v.  Krabbcnschmidt,  44  S.  W.,  38,  40  (Tex.  Civ.  App., 
1897);  Yatos  v.  Bachloy,  33  Wis.,  185;  see,  also,  Goedeke  v.  Baker,  28 
S.  W.,  1039   (Tex.  Civ.  App.,  1894).] 

[Necessary  improvements  made  by  a  tenant  upon  a  hotel,  ''an  not  bo 
recovered;  and  the  fact  that  the  landlord  witnessed  the  makiug  of  them 

191 


*134  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

for  purposes  of  trade,  are  removable  by  him  during  the  term, 
as  trade  fixtures.  With  reference,  however,  to  houses  built 
and  used  exclusively  or  principally  for  the  purpose  of  dwel- 
lings, or  merely  with  a  view  of  adding  to  the  yearly  value  or 
income  of  the  land,  a  distinction  has  very  properly  been  made. 
Though  dwellings  are  great  conveniences  and  even  necessi- 
ties to  enable  men  of  all  classes  to  enjoy  the  fruits  of  their 
labor  and  trade,  they  are  intended  for  purposes  of  habitation, 
and  are  equally  necessary  to  the  farmer,  tradesman,  and  gen- 
tleman of  leisure  who  follows  no  occupation.  Such  structures 
when  built  by  a  tenant  solely  or  principally  for  purposes  of 
[*134]  *habitation,  or  merely  with  the  view  of  adding  to  the 
yearly  value  or  income  of  the  land,  and  not  for  the  furtherance 
of  the  trade  or  business  of  the  lessee,  unless  so  temporarily  con- 
structed and  attached  to  the  soil  as  to  show  plainly  an  intention 
that  they  should  retain  their  chattel  nature  and  remain  the  prop- 
erty of  the  tenant,!  are  to  be  presumed  to  have  been  erected  per- 
peUii  usus  causa,  and  are  not  removable  even  by  a  tenant  for 
years,  without  the  landlord's  permission.2     And  if  nothing  ap- 

does  not  raise  an  implication  of  a  promise  to  pay  for  them.  Woolley  v. 
Osborne,  39  N.  J.  Eq.,  54,  59   (1884).] 

[Where  a  lessee,  under  an  erroneous  impression,  arising  from  a  miscon- 
struction of  his  contract,  that  he  has  leased  land  during  the  life  of  his 
lessor,  erects  barns,  houses,  and  makes  other  extensive  improvements,  he 
can  not,  upon  a  termination  of  his  lease  by  the  landlord,  have  compensa- 
tion therefor;  nor  is  the  rule  modified  by  the  fact  that  the  lessor  remained 
quiet  while  the  lessee  was  thus  expending  his  money.  Dunn  v.  Bagby,  88 
N.  C,  91   (1883).] 

[Where  the  lessee  is  evicted  by  a  paramount  title,  he  can  not  recover 
the  value  of  his  improvements  from  his  lessor,  where  the  lease  was  made 
in  good  faith,  although  there  was  a  covenant  that  the  lessee  should  erect 
improvements,  but  no  agreement  that  the  lessor  was  to  pay  therefor,  and 
although  the  lessor  has  set  off  the  value  of  the  improvements  to  the  claim 
for  mesne  profits.     Lanigan  v.  Kille,   97   Pa.   St.,   120    (1881).] 

lAs  in  Farant  v.  Farant,  2  Wash.  Law  Eep.,  137  (1875),  Supr.  Ct.  D. 
C,  where  the  wooden  dwelling  stood  on  blocks  or  rollers,  and  was  not 
fastened  to  the  ground,  being  so  built  for  the  purpose  of  removal  if 
necessary.  See,  also,  Krounse  v.  Eoss,  1  Cranch  C.  C,  368  (1806).  [Nigro 
V.  Hatch,  2  Ariz..  144  (1886)  ;  Eobinson  v.  Wright,  9  D.  C,  54,  56  (1875)  ; 
Shaw  v.  Shaw,  59  111.  App.,  264  (1894);  see,  also,  Meyer  v.  O'Dell,  18 
Tex.  Civ.  App.,  210   (1898).] 

2  Cannon  v.  Hare,  1  Tenn.  Ch.,  22,  36  (1872).  See  the  cases  cited,  ante, 
p.  *66,  chap,  3.     In  Cannon  v.  Hare,  the  lessee  of  a  dowresa  erected  on  a 

192 


*1Qi. 


CHAP.  IV.]         ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *13 

city  lot  a  row  of  buildings,  framed  in  the  shop,  each  part  marked  for  its 
particular  position,  and  raised  without  framing  on  a  brick  foundation 
wall  with  brick  chimneys  and  composition  roof  entire,  and  rented  the 
lower  rooms  for  stores,  and  the  upper  rooms  for  bed-rooms,  and  it  was 
held,  that  these  buildings  passed  on  the  death  of  the  dowress  to  the  re- 
maindermen, and  that  the  lessee  was  neither  entitled  to  remove  them  nor 
to  compensation  for  their  value.  See,  also,  1  South.  Law  Eev.  (1872), 
246;  Ombony  v.  Jones,  19  N.  Y.,  234,  240  (1859).  In  this  case  Comstock, 
J.,  in  delivering  the  opinion  of  the  court,  said:  "In  a  somewhat  recent 
case  in  the  Supreme  Court  of  this  State,  it  was  stated  by  an  able  judge, 
'that  any  person  who  has  a  temporary  interest  in  land,  and  who  makes 
additions  to,  or  improvements  upon  it,  for  the  purpose  of  better  use  and 
enjoyment  of  it  while  such  temporary  interest  continues,  may,  at  any 
time  before  his  right  of  enjoyment  expires,  rightfully  remove  such  addi- 
tions and  improvements.'  (King  v.  Wilcomb,  7  Barb.,  266;  Dubois  v. 
Kelly,  10  Id.,  500).  The  rule,  as  thus  stated,  is,  I  think,  laid  down  some- 
what too  broadly.  The  adjudged  cases,  I  am  confident,  do  not  sustain  a 
doctrine  so  general.  On  the  contrary,  the  general  maxim  of  the  law  is, 
that  whatever  is  fixed  to  the  realty  becomes  a  part  of  it,  and  partakes  of 
all  its  incidents  and  properties.  This  is  the  rule  even  in  the  relation  of 
landlord  and  tenant.  Many  exceptions  have  been  engrafted  upon  it,  but 
the  rule  itself  has  not  been  reversed,  and  therefore,  it  must  not  be  lost 
sight  of.  (Ferard  on  Fixtures,  8)."  *  *  *  *  "A  building  is,  in  its 
very  nature,  an  annexation  to  land,  and  it  becomes  a  chattel  only  by  the 
application  of  some  exceptional  rule."  The  building  in  this  case,  a  ball- 
room erected  by  the  lessee  of  an  inn,  was  held  to  come  within  the  excep- 
tion as  to  trade  fixtures.  See,  also,  Kissam  v.  Barclay,  17  Abb.  Pr.,  360 
(1864);  Schlemmer  v.  North,  32  Mo.,  206  (1862);  Hob.,  234;  Year  Book, 
17  Ed.  2,  518   (1324). 

In  Reid  v.  Kirk,  12  Rich.  Law,  54  (1859),  a  summer-house  built  by  a 
tenant  in  the  usual  way  of  building  a  dwelling,  and  occupied  as  a  dwelling 
house  for  nearly  thirty  years,  was  held  not  to  be  removable,  as  against  the 
owner  of  the  fee.  Whitncr,  J.:  "Everything  which  is  annexed  to  the 
freehold  becomes  part  of  the  realty,  and  can  only  be  severed  from  it  and 
reinvested  with  the  character  of  personal  property  by  the  act  of  the  owner 
of  the  land,  and  the  rule  applies  not  only  to  houses  and  other  structures 
which  !ire  pormancnt  in  themselves,  but  to  every  chattel  which  is  actually 
and  substantially  affixed  to  the  freehold.  Whenever  these  rules  apply,  an 
exception  must  rest  upon  some  reasonable  and  sensible  distinction.  This 
we  think  has  not  been  shown  in  the  present  instance." 

So,  in  Van  Ness  v.  Pacard,  2  Pet.,  137,  147  (1829),  per  Story,  J.: 
"Then  as  to  the  residence  of  the  family  in  the  house,  this  resolves  itself 
into  the  same  consideration.  If  the  house  were  built  principally  for  a 
dwelling  house  for  the  family,  independently  of  carrying  on  the  trade, 
then  it  would  doubtless  be  deemed  a  fixture,  falling  under  the  general 
rule,  and  immovable."  See,  also,  17  Edw.  2,  518  (1324);  3  Mason  C.  C, 
465;  McCullough  v.  Irvine,  13  Penn.  St.,  438  (1850);  Haflick  v.  Stober, 
13  193 


*lSi  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

11  Ohio  St.,  482  (1860);  Austin  v.  Stevens,  24  Me.,  520  (1845);  Kutter 
V.  Smith,  2  Wall.,  491  (1864) ;  Doak  v.  Wiswcll,  38  Me.,  569  (1854)  ; 
Marable  v.  Jordan,  5  Humph.,  417  (1844);  Shepard  v.  Spaulding,  4  Met., 
416   (1842);   Darcy  v.  Askwith,  Hob.,  234    (1618). 

In  Kissam  v.  Barclay,  17  Abb.  Pr.,  360  (1864),  a  three-story  brick 
building  erected  by  a  tenant  on  premises  leased  for  a  term  of  years,  there 
being  no  provision  in  the  lease  for  its  removal,  and  the  building  not  being 
erected  for  purposes  of  trade,  was  held  to  be  a  part  of  the  realty.  The 
tenant  not  being  entitled  to  remove  it  at  the  end  of  his  term,  but  only  to 
the  use  of  it,  his  mortgagee  vras  held  not  entitled  to  payment  of  his  mort- 
gage out  of  money  awarded  to  the  owner  of  the  land  for  damages  to  the 
land  and  house. 

The  doctrine  above  advanced  in  King  v.  Wileomb,  and  Dubois  v.  Kelly, 
has,  however,  been  approved  by  some  able  writers,  and  has  some  support 
from  certain  dicta  of  judges.  The  American  editors  of  Smith's  Leading 
Cases  (2  Smith's  Lead.  Cas.,  258),  referring  to  the  subject,  say:  "The 
decisions  will,  perhaps,  finally  establish  that  every  addition  or  improve- 
ment made  by  a  tenant  which  can  be  severed  without  placing  the  freehold 
in  a  worse  condition  than  it  was  when  the  term  began,  may  be  removed  at 
or  before  its  termination,  without  regard  to  the  cause  or  motive  that  led 
to  the  erection. "  *  *  *  "  The  privilege  of  the  tenant  seems  at  one 
time  to  have  been  limited  to  fixtures  erected  for  the  benefit  of  trade,  but 
it  now  embraces  additions  to  the  freehold  made  for  ornament,  pleasure  or 
convenience  {ante,  *192),  and  may  extend  to  structures,  or  even  buildings 
of  a  durable  and  substantial  kind,  if  so  constructed  that  they  can  be  taken 
away  without  serious  or  irreparable  injury  to  themselves,  or  the  premises 
of  which  they  form  a  part.  Van  Ness  v.  Pacard,  2  Peters,  137;  Grymes  v. 
Bowerin,  6  Bing.,  437;  Martin  v.  Roe,  7  Ellis  and  Bl.,  237."  See,  also, 
dicta  in  Whiting  v.  Brastow,  4  Pick.,  310  (1826)  ;  Taylor  v.  Townsend,  8 
Mass.,  416  (1812);  Washburn  v.  Sproat,  16  Mass.,  449  (1820);  1  Wash. 
Eeal  Prop.,  114;  Bircher  v.  Parker,  40  Mo.,  120  (1867);  s.  c,  43  Mo., 
443  (1869)  ;  Cromie  v.  Hoover,  40  Ind.,  57  (1872).  The  case  of  Martin  v. 
Eoe,  above  cited,  seems  to  have  been  decided  upon  principles  peculiar  to 
the  law  of  dilapidation,  to  be  hereafter  explained;  and  the  general  doc- 
trine is  believed  to  be  as  stated  in  the  text. 

In  Louisiana,  by  Art.  2697,  C.  C,  the  lessee  has  a  right  to  remove  the 
improvements  and  additions  which  he  has  made  to  the  thing  let,  provided 
he  leaves  it  in  the  state  in  which  he  received  it;  but  if  these  additions  be 
made  with  lime  and  cement,  the  lessor  may  retain  them  on  paying  a  fair 
price.  See  Peeoul  v.  Auge,  18  La.  Ann.,  614  (1866)  ;  Sigur  v.  Lloyd,  1 
Id.,  421  (1846);  Pellenz  v.  Bullerdieck,  13  Id.,  274  (1858);  Talley  v. 
Alexander,  10  Id.,  627  (1855);  Blaehe  v.  Aleix,  15  Id.,  50  (1860);  Sewall 
V.  Duplessis,  2  Rob.,  66   (1842). 

[A  servant's  room  attached  to  the  main  body  of  the  building,  gal- 
vanized iron  gutters  attached  to  the  roof,  iron  water-pipes  underground, 
a  cement  walk,  flowers,  a  fountain,  and  plumbing  fixtures  are  not  remov- 
able.    Wright  V.  DuBigron,  114  Ga.,  765   (1901).] 

194 


CHAP.   IV.]         ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *135 

pears  *as  respects  the  purpose  for  which  buildings  are  [*135] 
erected  by  a  tenant  on  the  demised  premises,  or  the  manner  in 
which  they  are  connected  with  the  freehold,  bringing  them  with- 
in any  *exception  to  the  general  rule  on  the  subject,  they  [*136] 
are  presumed  to  be  a  part  of  the  realty,  and  do  not  belong  to 
the  tenant.!  The  tenant  is,  however,  entitled  to  their  use  dur- 
ing the  term,  and  if  such  buildings  are  torn  down  by  the  landlord 
before  the  end  of  the  term,  the  measure  of  the  tenant's  damages 

[A  two-story  frame  addition,  twenty  by  twenty-four,  placed  upon 
wooden  posts  set  in  the  ground,  and  nailed  to  the  old  building,  one  side 
of  which  was  changed  so  as  to  make  it,  with  the  addition,  one  structure, 
and  the  roofs  of  the  original  building  and  of  the  addition  being  connected, 
can  not  be  removed  by  a  tenant.  Friedlander  v.  Eyder,  30  Neb.,  783 
(1890).] 

[A  kitchen,  partly  stone  and  partly  frame,  securely  fastened  to  the 
main  building,  a  frame  building,  twenty-four  by  sixty-two,  resting  upon 
stone  walls,  erected  by  a  tenant  who  expected  to  buy  the  property,  or 
remain  there  as  long  as  he  lived,  can  not  be  removed  by  him,  however  great 
the  hardship.     Carver  v.  Gough,  153  Pa.  St.,  225   (1893).] 

[A  dwelling-house,  stables,  etc.,  are  not  trade  fixtures,  although  they 
might  be  removed  without  injury  to  the  premises.  Johnson  v.  Willinghby, 
3  Tenn.  Cas.   (Shannon),  338   (1875).] 

[For  other  cases  holding  that  a  building  erected  by  a  tenant  is  pre- 
sumed to  be  a  permanent  annexation,  see  Board  of  Education  v.  Grant, 
118  Cal.,  39,  41  (1897);  Marks  v.  Eyan,  63  Cal.,  107,  111  (1883); 
Mueller  v.  Chicago,  M.  &  St.  P.  R'y  Co.,  Ill  Wis.,  300  (1901);  Allan  v. 
Bowe,  1  N.  Brunsw.  Eq.  (Trueman),  41,  51  (1894)  ;  see,  also,  ante,  p. 
•62,  and  Kenerson  v.  Colgan,  164  Mass.,  166  (1895);  Ee  Allen,  31  Ont., 
335,  338   (1900);  Harrison  v.  Smith,  19  Nova  S.,  516   (1887).] 

1  Schlcmmer  v.  North,  32  Mo.,  206  (1862).  See,  also,  the  cases  cited  in 
the  preceding  note;  Howard  v.  Fesscndcn,  14  Allen,  128  (1867);  Madigan 
V.  McCarthy,  108  Mass.,  377  (1871);  Fisher  v.  Saffer,  1  E.  D.  Smith,  611 
(1852).  [Dougherty  v.  Spencer,  23  HI.  App.,  357,  360  (1887);  Griffin  v. 
Eansdell,  71  Ind.,  440,  442  (1880);  Wheeler  &  Wilson  Co.  v.  Hasbrouck, 
68  Iowa,  554  (1886);  Docking  v.  Frazell,  38  Kan.,  420,  423  (1888);  34 
Kan.,  29,  33  (1885);  Stevens  v.  Burnham,  62  Neb.,  672,  673  (1901); 
Bohl  v.  Brown,  2  Tex.  Ct.  App.,  Civ.,  §  541  (1885);  Fitzgerald  v.  Ander- 
son, 81  Wis.,  341,  343  (1892);  Gray  v.  McLennan,  3  Man.,  337,  340 
(1886);  see,  also,  ante,  p.  *66.] 

[The  fact  that  a  tenant,  with  the  approval  of  his  landlord,  insures,  in 
his  own  name,  buildings  erected  by  him,  does  not  affect  the  question  as  to 
whether  they  are  fixtures,  as  the  landlord  might  bo  willing  to  allow  him 
to  draw  the  insurance  money,  in  case  of  their  destruction  by  fire,  to  enable 
him  to  rebuild.     Carver  v.  Gough,  153  Pa.  St.,  225,  229  (1893).] 

195 


•137  THE  LAW  OF  FIXTURES.  [CHAP.  FV. 

is  the  value  of  the  rent  from  the  time  they  were  demolished  till 
the  end  of  the  term.^ 

The  instances  where  fixtures  of  the  class  under  consideration 
in  this  section  have  been  allowed  to  be  removed  by  the  tenant 
for  years  as  against  his  landlord,  are  quite  numerous.  There 
are  much  confusion  and  obscurity  in  the  early  authorities  on 
this  subject;  and  as  many  of  them  proceed  upon  distinctions 
as  to  the  method  of  attachment,  etc.  (as  in  the  case  of  the  fur- 
nace in  Day  v.  Austin^),  which  are  not  untenable,  no  use:ful 
purpose  would  be  subserved  by  considering  them  at  length.  They 
will,  however,  be  found  referred  to  in  the  notes.^ 
[*137]  *Further  instances  of  articles  that  have  been  held  re- 
movable by  the  tenant  during  his  term  will  be  found  in  the  note 
below.^ 

2Schlemmer  v.  North,  32  Mo.,  206  (1862).  See,  also,  Kissam  v.  Bar- 
clay, 17  Abb.  Pr.,  360  (1864). 

[Where  buildings  erected  by  a  tenant  are  the  property  of  the  landlord, 
the  measure  of  the  tenant's  compensation,  in  condemnation  proceedings, 
is  the  value  of  the  leasehold  including  the  use  only  of  such  buildings. 
Corrigan  v.  Chicago,  144  111.,  537,  551    (1893).] 

3  Owen,  '70  (1598)  ;  s.  c,  under  the  style  Day  v.  Disbitch,  Cro.  Eliz., 
374  where  it  was  "agreed  that  a  furnace  fixed  in  medio  domus  is  but  a 
chattel,  and  is  removable;  but  otherwise  it  is,  being  fixed  to  the  walls." 
See,  also,  42  Edw.  3,  pi.  6;  20  Hen.  7,  13;  21  Hen.  7,  26;  Squier  v.  Mayer, 
2  Freem.  Ch.,  249   (1701)  ;  s.  C,  2  Eq,  Ca.  Abr.,  430. 

*  See  the  cases  of  tables  dormant,  furnaces,  benches,  etc.,  considered  in 
8  Hen.  7,  12  (1493);  20  Hen.  7,  13  b  (1504);  21  Hen.  7,  26  b  (1505);  Day 
V.  Austin,  Owen,  70  (1595);  s.  c,  Cro.  Eliz.,  374;  Bro.  Abr.,  Chattels,  pi. 
7,  11;  Id.  Waste  pi.,  104;  Squier  v.  Mayer,  2  Freem.  Ch.,  249  (1701);  2 
Eq.  Ca.  Abr.,  430. 

See,  also,  Co.  Lit.,  53  a,  where  wainscot,  benches  and  furnaces  are  de- 
clared to  be  irremovable  by  a  tenant;  also,  generally,  Keilw.,  88;  Noy's 
Max.   (9th  ed.),  167. 

All  these  articles  if  annexed  for  the  temporary  domestic  use  and  con- 
venience of  the  tenant,  and  capable  of.  removal  without  substantial  injury 
to  the  realty,  would  doubtless  now  be  allowed  to  be  removed  by  the  tenant. 

5  Arras  and  hangings  have  been  held  removable  by  the  tenant.  Bridge- 
man 's  Case,  1  Eoll.  Eep.,  216,  pi.  14  (1615).  See,  also,  Squier  v.  Mayer, 
2  Freem.  Ch.,  249  (1701) ;  s.  c,  2  Eq.  Ca.  Abr.,  430,  furnace  and  hang- 
ings; Beck  V.  Eebow,  1  P.  Wms.,  94  (1706). 

So,  as  to  pump  put  in  a  well  for  domestic  convenience,  and  fastened  to 
a  platform  which  was  also  nailed  down.  McCracken  v.  Hall,  7  Ind.,  30 
(1855) ;  s.  P.,  Grymes  v.  Bowerin,  6  Bing.,  437  (1830) ;  s.  c,  4  M.  &  P., 
143;  8  L.  J.  C.  P.,  140. 

196 


CHAP.  IV.]  WHEN  TO  BE  REMO\'ED.  *138 

IV.    TVhen    the    Eight    of    Removing    Fixtures    must    be 

Exercised.^ 

The  general  rule  of  law  being,  as  has  already  been  seen, 
" quicquid  solo  plantatur,  solo  cedit,"  and  the  right  of  the 
*tenant  as  against  his  landlord  being  only  the  right  of  [*138] 
user  during  the  term,  and  to  remove  during  his  term  the  fixtures 
he  may  have  put  up,  and  so  make  them  to  cease  to  be  any  longer 
fixtures,^  it  becomes  a  very  material  inquiry  to  ascertain,  if 
possible,  the  precise  limits  of  the  period  within  which  this 
right  may  be  exercised.  From  a  very  early  period  it  has  been 
generally  considered  that  this  right  of  a  tenant  for  years  must 
be  exercised  during  the  continuance  of  his  term,  but  not  after 
the  expiration  thereof;  and  the  rule  is  quite  generally  so  stated 

So,  as  to  a  gasometer  and  gas  fixtures.  Hays  v.  Doane,  11  X.  J.  Eq., 
84  (1855).  [L'Hote  v.  Fulham,  51  La.  Ann.,  780,  787  (1899);  see,  also, 
post,  p.  *299.] 

So,  as  to  grates,  stoves,  etc.  Lee  v.  Eisdon,  7  Taunt.,  191  (1816),  per 
Gibbs,  C.  J.;  Bex  v.  St.  Dunstan,  4  B.  &  C,  686  (1825),  per  Bayley,  J. 

So,  as  to  a  cupboard  standing  on  the  ground  supported  by  holdfasts. 
Bex  V.  St.  Dunstan   {supra),  per  Bayley,  J. 

[So,  as  to  a  "wash-do^vn  syphon  Avater  closet"  in  an  office.  Hayford  v. 
Wentworth,  97   Me.,   347    (1903).] 

[See  Carlin  v.  Bitter,  68  Md.,  478,  491  (1888),  as  to  a  bake-house  and 
oven,  a  fountain  in  the  yard,  a  furnace  in  the  cellar,  laundry  tubs,  grates, 
insi<le  shutters,  office-counter,  shelving,  mirrors  fastened  in  panels  in  tho 
wall  of  the  bar-room,   and  inside  iron   stable-doors  upon   hotel   premises.] 

[A  tenant  may  remove  gravel  from  garden  walks,  and  wooden  steps  for 
gaining  access  to  terraces,  but  not  ornamental  shrubs  and  turf.  Burns  v. 
Fleming   (1880),  8  Sess.  Cas.,  4th  Ser.,  226.] 

But  a  tenant,  not  a  gardener,  cannot,  during  or  after  his  term,  remove  a 
border  of  box  planted  on  the  demised  premises  by  himself,  unless  by  spe- 
cial agreement  with  the  landlord.  Empson  v.  Sodon,  4  R.  &  Ad.,  655 
(1833);   s.  c,  1  N.  &  IM.,  720. 

See,  also,  the  cases  cited  in  the  chapters  considering  the  relations  of 
Executor  and  Hcjr,  etc.,  which  upon  tlic  principle  already  considered 
{ante,  p.  *90)  may  be  considered  as  authorities  in  this  relation  also.  [And 
see,  post,  p.  *149.] 

8  In  this  section  the  effect  of  special  agreements  \\\»m  tho  right  of 
removal  will  not  be  considered,  but  only  cases  where  there  has  been  no 
contract  affecting  the  question. 

7  See  Minshall  v.  Lloyd,  2  M.  &  W.,  450  (1837),  and  the  cases  cited 
ante,  p.  •77. 

107 


*139  THE  LAW  OP  FIXTURES.  [ClIAP.  IV. 

in  the  books.^  We  find  it  clearly  stated  in  the  Year  Book,  20 
Hen.  7,  11^  b,  pi.  24  (1504)  :  "And  if  a  lessee  for  years  make 
such  a  furnace  for  his  advantage,  or  a  dyer  makes  his  vats  and 
vessels  to  carry  on  his  occupation  during  his  term,"  he  may 
remove  them ;  but  if  he  sulVer  them  to  remain  fixed  to  the  earth 
after  the  end  of  his  term,  then  they  belong  to  the  lessor," 

The  ground  of  the  rule  has  been  stated  to  be  a  presumed 
abandonment  or  gift  in  law  to  him  in  reversion,  arising  from, 
leaving  the  fixtures  annexed  to  the  freehold  after  the  expira- 
[*139]  *tion  of  the  term;^'^  but  this  ground  does  not  seem  en- 
tirely satisfactory,  and  it  seems  more  proper  to  state  that  by 

8  See  Poole's  Case,  1  Salk.,  368  (1703);  s.  c,  Holt,  65,  per  Holt,  C.  J.: 
"That  during  the  term  the  soap-boiler  might  well  remove  the  fats,"  etc. 
"But  after  the  term  they  become  a  gift  in  law  to  him  in  reversion,  and 
are  not  removable";  Ex  parte  Quiney,  1  Atk.,  477  (1750);  Dudley  v. 
Warde,  1  Ambl.,  113  (1751);  Minshall  v.  Lloyd,  2  M.  &  W.,  450  (1837); 
Pugh  V.  Arton,  L.  E.  8  Eq.,  626  (1869) ;  s.  C,  38  L.  J.  (N.  S.),  Chanc, 
619;  20  L.  T.  (N.  S.),  865;  17  W.  E.,  984;  Ex  parte  Eeynal,  2  M.  D.  & 
DeG.,  461  (1841);  Gaffield  v.  Hapgood,  17  Pick.,  192  (1835);  Moore  v. 
Smith,  24  111.,  512  (1860);  s.  c,  26  111.,  392;  Stockwell  v.  Marks,  17  Me., 
455  (1840);  Heflfner  v.  Lewis,  73  Penn.  St.,  302  (1873);  Davis  v,  Buffum, 
51  Me.,  160  (1863);  Dingley  v.  Buffum,  57  Me.,  381  (1869);  Davis  v. 
Moss,  38  Penn.  St.,  346  (1861);  Overton  v.  Williston,  31  Penn,  St.,  155 
(1858);  Preston  v.  Briggs,  16  Vt.,  129  (1844).  [Griffin  v.  Eansdell,  71 
Ind.,  440,  443  (1880)  ;  London  Loan  Co.  v.  Pulford,  8  Ont.  Pr.,  150,  153 
(1879);  see,  also,  Bonney  v.  Foss,  62  Me.,  248   (1873).] 

'■>  The  clause  ' '  during  his  term ' '  probably  more  properly  relates  to  the 
words  "to  carry  on  his  occupation."  It  is  translated  by  some  as  referring 
to  those  words,  and  by  others  as  referring  to  the  word  "remove."  The 
punctuation  of  the  text  seems  to  indicate  that  the  former  is  the  correct 
reading.  The  original  text  is  "pur  occupier  son  occupation  durant  le 
t'me,  il  pent  remuer  eux:  mes  s'il  souff'r  cux  e'e  fixes  al'  terre  apres  le 
-fin  del'  t'me,  donq  its  appent  ah  lessor."  Whichever  may  be  deemed  to  be 
the  correct  translation,  the  concluding  sentence  renders  the  sense  suf- 
ficiently apparent.     See,  also,  21  Hen.  7,  26  b,  pi.  4  (1505). 

10  See  Poole's  Case,  1  Salk.,  368  (1703);  s.  c.  Holt,  65;  Lyde  v.  Eus- 
sell,  1  B.  &  Ad.,  394  (1830);  Ombony  v.  Jones,  19  N»  Y.,  238  (1859); 
Northern  Cent.  E.  E.  Co.  v.  Canton  Co.,  30  Md.,  355  (1868)  ;  McCracken  v. 
Hall,  7  Ind.,  30  (1855).  It  was  accordingly  held,  in  Penton  v.  Eobart,  2 
East,  88  (1801),  that  the  presumption  of  abandonment  could  not  arise  so 
long  as  the  tenant  remained  in  possession,  though  after  the  expiration  of 
the  terra,  and  though  as  a  trespasser.  See,  however,  the  pages  immediately 
following.  [Sweet  v.  Myers,  3  S.  Dak.,  324,  329  (1892) ;  Ex  parte  Brook 
(1878),  10  Ch.  D.,  100,  109.] 

198 


CHAP.   IV.]  WHEN  TO  BE  REMOVED.  *139 

their  annexation  the  tenant's  fixtures  became  a  part  of  the  free- 
hold subject  to  the  right  of  the  tenant  during  his  term  to  remove 
them  and  make  them  again  chattels,  and  that  unless  so  removed 
they  belong  to  the  landlord."  The  right  of  the  tenant  to  re- 
move his  fixtures  after  the  expiration  of  his  term  may,  how- 
ever, be  reserved  to  him  by  oral  agreement  with  the  landlord.12 
The  cases  quite  generally  agree,  that  in  the  absence  of  a  con- 
tract giving  that  right,  the  right  of  removal  of  fixtures,  prop- 
erly so  called,  cannot  be  exercised  either  by  the  tenant  or  his 
vendee  after  the  expiration  of  the  term  and  surrender  of  pos- 
session of  the  premises  by  the  tenant.^^     There  are,  however, 

"See  Gibson  v.  Hammersmitli  E'w'y  Co.,  2  Drew  &  Sm.,  610  (1862); 
Leader  v.  Homewood,  5  C.  B.  (N.  S.),  546  (1858).  [See  Jackson  v. 
KUnger,  67  N.  Y.  Supp.,  850,  851   (1900).] 

12  McCracken  v.  Hall,  7  Ind.,  30  (1855) ;  see  post  as  to  the  effect  of 
agreements  respecting  the  right   of  removing  fixtures. 

[See  Duffus  v.  Bangs,  122  N.  Y.,  423,  427  (1890),  as  to  nursery  stock.] 
[In  Josslyn  v.  McCabe,  46  Wis.,  591  (1879),  the  tenants,  before  sur- 
render, asked  the  landlord  if  they  might  leave  their  fixtures  and  he 
replied  that  he  was  willing,  as  the  fixtures  might  help  him  to  rent  the 
store.  Said  Eyan,  C.  J. :  "It  was  permission  to  leave  behind,  not  to  re- 
enter and  remove.  *****  The  question  and  answer  *****  are 
both  ambiguous.  The  question  will  well  bear  the  construction  of  being 
founded  on  the  convenience  *  *  *  *  to  leave  the  fixtures  behind  to  save 
the  trouble  and  expense  of  removing  them.  *  *  *  *  For  it  is  difficult  to 
understand  how  the  fixtures  could  aid  *  *  *  *  in  renting  ***** 
store,  if  they  were  removable  at  pleasure.  *  *  *  *  The  answer  is  a  mere 
assent  to  the  fixtures  being  left.  *  *  *  *  It  would  be  most  dangerous  to 
imply  a  right  to  enter  upon  realty  and  sever  things  attached  to  it.  upon 
such  vague  and  ambiguous  language."] 

13  See  Dostal  v.  McCaddon,  35  Iowa,  318  (1872);  Beckwith  v.  Boyce,  9 
Mo.,  556  (1845);  Gaffield  v.  Hapgood,  17  Pick.,  192  (1835);  Talbot  v. 
Whipple,  14  Allen,  177  (1867);  Thomas  v.  Crout,  *5  Bush.  (Ky.),  37 
(18G8);  State  v.  Elliot,  11  N.-II.,  540  (1841),  windows  fitted  to  a  house; 
Brooks  V.  Galster,  51  Barb.,  196  (1868),  nursery  trees  left  by  a  tenant,  a 
nurseryman,  planted  on  the  premises  after  surrendering  possession; 
Leader  v.  Homewood,  5  C.  B.  (N.  S.),  546  (1858) ;  Lyde  v.  Kussell,  1  B. 
&  Ad.,  394  (1830),  bells  left  hanging  in  a  house;  Bliss  v.  Whitney,  9 
Allen,  114  (1864)  ;  Merritt  v.  Judd,  14  Cal.,  59  (1859)  ;  Allen  v.  Kennedy, 
40  Ind.,  142  (1872).  See,  also,  Burk  v.  Ilollis,  98  Mass.,  55  (1867). 
[Carr  v.  Georgia  R.  R.,  74  Ga.,  73,  81  (1884)  ;  Youngblood  v.  Eubank,  68 
Gi'..,  630,  633  (1882);  Leman  v.  Best,  30  111.  App.,  323,  326  (1888);  Don- 
nelly v.  Thieben,  9  111.  App.,  495,  499  (1881);  Iledderich  v.  Smith,  103 
Ind.,   203,    205    (1885);    Erickson   v.   Jones,    37    Minu.,   459,   460    (1887); 

199 


♦140  THE  Li\.W  OP  FIXTURES.  [CIIAP.  IV. 

a  class  of  cases  and  dicta  which  apparently  support  a  contrary- 
doctrine.  Thus,  in  Holmes  v.  Treniper/-*  which  was  the  case 
of  a  cider-mill  and  press  erected  by  a  tenant  on  a  farm,  the 
demised  premises,  and  alleged  to  have  been  annexed  to,  and 
parcel  of,  the  said  farm,  but  how  annexed  not  being  stated,  it 
[*140]  *was  observed  by  Spencer,  C.  J. :  "The  plaintiff's  coun- 
sel supposes  that  the  tenant  could  not  remove  this  mill  after 
the  end  of  the  term.  It  is  true,  that  if  she  entered  upon  the 
plaintiff's  possession  and  took  away  the  mill,  she  would  be  a 
trespasser  on  the  soil,  and  answerable  for  breaking  the  close; 
but  leaving  the  mill  there,  if  it  belonged  to  her,  would  not  work 
any  change  of  the  property;  and  in  this  action  the  trespass 
for  entering  on  the  premises  is  not  in  question;  and  when  it 
is  said  that  the  removal  must  be  within  the  term  or  else  he 
will  be  a  trespasser,  it  means  only  a  trespasser  as  regards  the 
entry.  "1     The  learned  judge,  in  another  part  of  the  opinion, 

Walsh  V.  Sichler,  20  Mo.  App.,  374,  380  (1886) ;  Friedlander  v.  Eycler,  30 
Neb.,  783,  787  (1890)  ;  Free  v.  Stuart,  39  Neb.,  220,  226  (1894)  ;  Bedlow 
V.  New  York  Dock  Co.,  112  N.  Y.,  263,  282  (1889) ;  Darrah  v.  Baird,  101 
Pa.  St.,  265,  272  (1882)  ;  Childs  v.  Hurd,  32  W.  Va.,  66,  103  (1889)  ; 
Fitzgerald  v.  Anderson,  81  Wis.,  341,  343  (1892) ;  Josslyn  v.  MeCabe,  46 
Wis.,  591,  592  (1879)  ;  Harrison  v.  Smith,  19  Nova  S.,  516  (1887)  ;  Daly 
V.  Marshall,  4  N.  Z.  L.  E.,  Supr.  Ct.,  28,  34  (1885);  see,  also,  Nolan  v. 
Eotsler,  135  Cal.,  264  (1901);  Stevens  v.  Burnham,  62  Neb.,  672,  673 
(1901)  ;  Smith  v.  Felt,  50  Barb.,  612  (N.  Y.,  1868)  ;  Albert  v.  Uhrich,  180 
Pa.  St.,  283  (1897)  ;  Sampson  v.  Camperdown  Mills,  64  Fed.,  939,  942 
(U.  S.  C.  C,  S,  C,  1894);   Donkin  v.  Crombis,  11  Up.  Can.  C.  P.,  601.] 

[Nor  has  a  purchaser  at  a  foreclosure  sale  under  a  chattel  mortgage 
before  the  expiration  of  the  lease,  any  right  to  remove  after  the  lease 
expires.     S^-eet  v.  Myers,  3  S.  Dak.,  324,  330   (1892).] 

1*20    John.,    29    (1822), 

1  This  doctrine  is  approved  in  Lawrence  v.  Kemp,  1  Duer,  363  (1852), 
with  reference  to  gas-fixtures  and  sitting-stools  placed  by  a  tenant  in  a 
store. 

It  is  not  perceived  upon  what  doctrine  this  ease  can  be  supported,  unless 
the  articles  in  question  are  considered  as  mere  chattels,  which  they  seem  to 
have  been  considered.  See,  also,  dictum  in  Pemberton  v.  King,  2  Dev., 
376  (1830),  disapproved  in  Merritt  v.  Judd,  14  Cal.,  68  (1859);  Penton  v. 
Eobart,  2  East,  88  (1801);  Anthony  v.  Haneys,  8  Bing.,  186  (1832). 
[See  Western  N.  C.  E.  E.  v.  Deal,  90  N.  C,  110  (1884).] 

In  Lyde  v.  Eussell,  1  B.  &  Ad.,  394  (1830),  where  a  yearly  tenant  of  a 
house  at  his  own  expense  during  the  term  hung  bells  on  the  premises,  but 
quitting  the  premises  without  removing  them,  the  landlord  afterwards  took 

200 


CHAP.  IV.]  WHEN  TO  BE  REMOVED.  *141 

also  observes,  that  the  tenant  had  an  unquestionable  right  to 
remove  the  mill  and  press  as  personal  property,  in  which  view 
of  the  ease  the  above  observations  were  undoubtedly  correct,  as 
the  title  to  a  chattel  is  not  lost  by  a  tenant's  leaving  it  on  the 
demised  premises  after  the  end  of  his  term,  though  he  may 
subject  himself  to  an  action  of  trespass  by  its  recaption.^  The 
above  observations,  however,  in  so  far  as  they  seem  to  favor 
*the  doctrine  that  a  tenant  may  rightfully  remove  fix-  [*141] 
tures  annexed  by  him  to  the  demised  premises,  after  the  termi- 
nation of  his  term  and  surrender  of  possession  to  the  landlord, 
subject  only  to  an  action  of  trespass  for  the  entry  upon  the 
close,  are  contrary  to  the  clear  weight  of  authority,  and  are  not 
the  law.^ 

These  remarks  will  explain  the  cases  referred  to  in  the  first 
chapter  of  this  work,  where  the  articles  in  question,  by  reason 
of  their  not  being  annexed  to,  but  only  resting  upon,  the  realty, 
were  considered  by  the  courts  to  be  chattels  merely,  and  hence 

them  down  and  refused  to  deliver  them  to  the  tenant,  it  was  argued  that 
the  bells  did  not  become  the  property  of  the  landlord,  because  the  tenant 
might  remove  them  during  his  term;  that  if  not  removed  by  him  during 
his  term,  he  could  not  enter  afterwards  for  the  purpose  of  taking  them 
away;  that  he  would  be  a  trespasser  in  so  doing;  nor  could  he  maintain 
trover  while  they  remained  affixed,  but  when  severed  they  became  again 
goods  and  chattels,  and  the  property  being  in  the  tenant,  he  might  main- 
tain trover.  It  was,  however,  held,  that  by  remaining  fixed  to  the  free- 
hold after  the  expiration  of  the  tenancy,  they  became  the  property  of  the 
landlord,  and  the  tenant  could  not  maintain  trover  for  them  after  the 
landlord  had  severed  them  from  the  freehold.  [See  i^ost,  p.  *435,  and 
Stokoe  V.  Upton,  40  Mich.,   581,  584    (1879).] 

2  See  Dame  v.  Dame,  38  N.  H.,  429  (1859);  Corey  v.  Bishop,  48  N.  II., 
146  (1868)  ;  Davis  v.  Emery,  61  Me.,  140  (1870)  ;  ante,  p.  *125,  note.  See, 
also,  Folsom  v.  :\roorc,  19  Me.,  2.'52  (1841).  [Roc  Broaddus  v.  Smith,  121 
Ala.,  335,  339   (1898).] 

3  See  the  eases  already  cited  in  this  section,  also  the  cases  hereinafter 
cited. 

Ho  may,  however,  remove  furniture.  Thus,  a  case  of  drawers,  a  large 
mirror  and  a  glass  case  affixed  by  a  tenant  to  a  wall  with  nails  or  screws, 
are  not  fixtures  which  ho  forfeits,  unless  removed  at  the  expiration  of  the 
tenancy,  but  personalty  removable  by  him  at  any  time  afterwards.  Mc- 
Leod  V.  Jones,  Bristol  (1870),  3  Mass.  Dig.  (Ben.  &  IIol.),  353;  s.  c. 
nom.     Guthrie  v.  Jones,  108  Mass.,  191. 

201 


*141  THE  LliVW  of  fixtures.  [ouap.  IV. 

to  belong  to,  and  be  removable  bj'^,  the  tenant,  though  not  done 
till  after  the  end  of  the  term.'* 

But  in  cases  where  the  tenant  is  wrongfully  prevented  by 
the  act  of  the  landlord  from  removing  his  fixtures  before  the 
expiration  of  the  term,  the  rule  does  not  apply .'^  And  this  rule 
is  applied  to  cases  whore  such  act  of  prevention  has  been  by 
the  use  of  legal  or  equitable  process;  thus,  where  the  landlord 
before  the  expiration  of  the  tenancy  (during  which  the  tenant 
might  rightfully  remove  his  fixtures)    sues  out  an  injunction, 

4Wansbrough  v.  Maton,  4  Ad.  &  E.,  884  (1836);  ante,  p.  14,  et  seq., 
and  notes;  also,  jwst,  at  the  end  of  this  section.  [Crerar  v.  Daniels,  109 
111.  App.,  654  (1903).] 

5  See  Moore  v.  Wood,  12  Abb.  Pr.,  393  (1860),  where  the  landlord's 
refusal  to  allow  the  tenant  to  remove  trade  fixtures  at  the  expiration  of 
his  term  on  his  being  dispossessed  for  non-payment  of  rent,  was  held  to 
amount  to  a  conversion.  [Smuseh  v.  Kohn,  49  N.  Y.  Supp.,  176,  178 
(1898)  ;  Watts  v.  Lehman,  107  Pa.  St.,  106  (1884) ;  Bermea  Lumber  Co. 
V.  Adoue,  20  Tex.  Civ.  App.,  655,  661  (1899) ;  Young  v.  Consolidated  Imp. 
Co.,  23  Utah,  586,  594  (1901);  Argles  v.  McMath,  23  Ont.  App.,  44 
(1896);  see,  also,  Updegraff  v.  Lesem,  15  Colo.  App.,  297,  307  (1900), 
where  the  landlord  notified  the  tenant  to  keep  off  the  premises  and  locked 
the  doors;  Podlech  v.  Phelan,  13  Utah,  333,  340  (1896),  where  the  land- 
lord, before  the  expiration  of  the  lease,  claimed  that  the  fixtures  tvere 
his,  and  where  an  attempt  to  remove  them  might  have  resulted  in  a  breach 
of  the  peace.     See  Waterman  v.  Clark,  58  Vt.,  601   (1886).] 

[Where,  just  prior  to  the  expiration  of  the  lease,  the  landlord  proposes 
to  buy  the  improvements,  and  negotiations  pend  until  after  the  expira- 
tion of  the  lease,  upon  failure  of  such  negotiations  the  tenant  has  a 
reasonable  time  thereafter  to  make  the  removal.  Caperton  v.  Stege,  91 
Ky.,  351  (1891);  Merriam  v.  Eidpath,  16  Wash.,  104  (1896);  likewise 
where  the  tenant  holds  over  with  the  consent  of  the  landlord,  pending 
negotiations  for  a  lease.  Sagar  v.  Eckert,  3  111.  App.,  412,  417  (1879) ; 
Lewis  V.  Perry,  149  Mo.,  257,  268   (1899).] 

[The  mere  fact  that  houses  are  suffered  to  remain  on  a  lot  after  the 
expiration  of  the  lease,  during  litigation  between  the  parties  as  to  pos- 
session of  the  lot,  does  not  forfeit  them.  Atkison  v.  Dixon,  96  Mo.,  588, 
590    (1888).] 

[Where  a  dispossessed  tenant  recovers  possession  through  the  courts, 
and  then  surrenders  his  possession  to  the  landlord,  a  tenant  who  was 
placed  in  possession  by  the  landlord  after  the  first  tenant  was  dispos- 
sessed, and  who  was  in  possession  when  such  tenant  is  placed  in  possession 
by  the  sheriff,  will  have  a  reasonable  time  to  remove  his  ficxtures  after  the 
landlord  resumes  final  possession.  Wright  v.  Macdonell,  27  S.  W.,  1024 
(Tex.  Civ.  App.,  1894).] 

202 


CHAP.  IV.]  WHEN  TO  BE  REMOVED.  *142 

and  the  tenant  is  thereby  prevented  by  this  interference  from 
making  the  removal  during  his  term,  he  or  his  assignee,  with- 
in a  reasonable  time  after  the  dissolution  of  such  injunction, 
may  lawfully  remove  such  fixtures,  although  the  term  maj^  have 
expired  pending  such  injunction  and  he  be  out  of  possession 
of  the  demised  premises.^ 

*  Though,  as  we  have  already  seen,  it  is  well  settled  that  [*142] 
a  tenant  may  not,  in  the  absence  of  an  agreement  giving  that 
right,  remove  his  fixtures  after  the  expiration  of  his  term  and 
surrender  of  the  possession  of  the  demised  premises,  there  have 
been  some  cases  where  the  tenant  holding  over  after  the  ex- 
piration of  his  term  has  been  considered  while  yet  in  possession, 
not  to  have  lost  such  right  of  removal.  The  case  of  Penton 
v.  Robart^  is  usually  cited  in  support  of  this  distinction.  In 
that  case  where  an  under  tenant,  against  whom  judgment  in 
ejectment  had  been  rendered  in  favor  of  the  reversioner,  re- 
mained in  possession  for  some  time  afterwards  and  after  the 
termination  of  the  original  term  by  notice  to  quit,  and  on  his 
removal  pulled  down  the  wooden  superstructure  and  carried 
away  the  materials  of  a  varnish-house  (brought  by  him  from 
another  place  where  he  had  exercised  his  trade,  and  set  up  on 
a  brick  foundation  let  into  the  ground,  with  a  chimney  belong- 
ing to  it),  it  was  held  that  the  defendant  did  no  more  than  he 
had  a  right  to  do,  he  being  still  in  possession  of  the  premises 
at  the  time  the  things  were  taken  away,  and  there  being,  there- 
fore, no  pretense  to  say  he  had  abandoned  his  right  to  them. 
The  principle  of  this  case  has  been  since  approved  in  several 
instances,^  but  it  seems  opposed  by  both  reason  and  authority. 

8  Mason  v.  Fenn,  13  111.,  525  (1852);  Birchcr  v.  Tarkor,  40  Mo.,  118 
(1867);  s.  c,  43  Mo.,  443  (1869);  Goodman  v.  niuitiilial  atid  St.  Jo.  R. 
E.  Co.,  45  Mo.,  33  (1869).  But  in  sueh  case  the  value  of  the  fixtures  is 
not  to  be  assessed  as  damages  upon  the  dissolution  of  the  injunction. 
Bircher  v.  Parker  (supra).  [Ex  parte  Honionway,  2  Lowell,  496,  498 
(U.  S.  Dist.  Ct.,  Mass.,  1876)  ;  see,  also,  Allen  v.  Dent,  72  Tenn.,  676, 
681   (1880)  ;  and,  pout,  p.  •407.] 

7  2   East,   88    (1801). 

8  See  Roberts  v.  Kain,  6  Robt.,  354  (1868),  which  seems  to  imply  that 
trade  fixtures  cannot  be  held  by  the  landlord  as  against  the  mortgagee  of 
the  tenant,  though  left  by  the  tenant  on  the  premises  after  his  being  dis- 
possessed for  non-payment  of  rent;  Keogh  v.  Daniell,  12  Wis.,  172  (1860); 
Dubois  V.  Kelly,  10  Barb.,  509   (1851);   Orabony  v.  Jones,  19  N.  Y.,  239 

203 


*143  THE  UVW  OF  FIXTLUES.  [CHAP.  IV. 

^Vitll  reference  to  cases  of  the  removal  of  fixtures  by  a  tenant 
holding  over  after  the  expiration  of  his  term,  the  true  line  of 
distinction  seems  to  be  whether  the  possession  of  the  tenant 
at  the  time  of  such  removal  is  a  nghtful  possession  or  not.  For 
if  his  holding  over  and  continued  possession  are  tortious,  it 
[*143]  *seems  inconsistent  with  i)rinciple  to  allow  him  to  reap 
an  advantage  from  his  own  wrongful  act  in  so  holding  over, 
and  thereby  extend  his  right  of  removing  his  fixtures  beyond 
the  expiration  of  his  rightful  term.  This  seems  to  be  the  princi- 
ple now  adopted  and  settled  by  the  weight  of  authority. 

In  Weeton  v.  Woodcock,''  the  question  came  under  consid- 
eration, and  the  rule  to  be  collected  from  the  several  cases  de- 
cided on  the  subject,  was  stated  by  Alderson,  B.,  to  be  "that 

(1859).  In  this  case,  however,  the  under  tenant,  after  surrendering  to  the 
reversioner,  continued  to  occupy,  agreeing  to  quit  when  required  by  the 
original  lessor,  the  reversioner,  so  that  his  possession  was  not  wrongful, 
but  he  remained  a  tenant  at  will.  See,  however,  the  following  pages  and 
notes. 

[A  tenant,  having  the  right  to  remove  a  fixture,  may  do  so  while  in 
possession  after  the  expiration  of  his  term,  although  the  land  has  been 
devised  to  another,     Sagar  v.  Eckert,  3  111.  App.,  412    (1879).] 

[See  Dunn  v.  Garrett,  7  N.  Brunsw.,  218,  222  (1851),  where  a  removal 
upon  the  day  the  tenancy  expired  was  considered  in  sufficient  time.] 

9  7  M.  &  W.,  14  (1840).  Alderson,  B.,  further  said:  "That  was  the 
rule  on  which  this  court  acted  in  Minshall  v.  Lloyd,  2  M.  &  W.,  460,  in 
which  Mr.  Baron  Parke,  in  giving  his  judgment,  puts  it  on  the  ground 
that  there  was  'no  doubt  that  in  that  case  the  steam-engines  were  left 
affixed  to  the  freehold  after  the  expiration  of  the  term,  and  after  the 
plaintiffs  had  any  right  to  consider  themselves  tenants. '  In  the  present 
case,  also,  the  boiler  was  removed  after  "the  entry  for  a  forfeiture,  and  at 
a  time  after  the  assignees  had  ceased  to  have  any  right  to  consider  them- 
selves as  tenants."  The  term,  in  this  case,  pursuant  to  a  proviso  in  the 
lease,  was  forfeited  by  the  bankruptcy  of  the  lessee,  and  the  lessor  entered 
upon  the  assignees  in  order  to  enforce  the  forfeiture;  but  three  weeks 
afterwards,  the  assignees  of  the  lessee,  who  still  continued  in  possession, 
sold  and  removed  a  fixture,  a  steam-engine  boiler,  put  up  by  the  lessee 
for  trade  purposes,  and  the  jury  found  that  such  removal  was  not  made 
within  a  reasonable  time  after  such  entry  of  the  lessor,  and  it  was  held, 
that  the  boiler  was  removed  after  the  assignees  had  ceased  to  have  any 
right  to  consider  themselves  as  tenants;  and  further,  even  if  they  had  the 
right,  in  a  case  where  the  entry  determining  the  tenancy  was  the  act  of  a 
third  person,  to  consider  themselves  entitled  to  a  reasonable  time  for 
removing  the  fixture,  the  jury  had  found  that  they  did  not  avail  them- 
selves of  that  privilege. 

204 


CHAP,  rV.]  WHEN  TO  BE  REMOVED.  *143 

the  tenant's  right  to  remove  fixtures  continues  during  his  orig- 
inal term,  and  during  such  further  period  of  possession  by  him, 
as  he  holds  the  premises  under  a  right  still  to  consider  himself 
as  tenant."  In  other  words,  the  right  of  the  tenant  to  remove 
his  fixtures  must  be  exercised  either  during  the  term  as  fixed 
by  the  contract,  or  during  such  further  period  as  the  tenant 
may  lawfully  and  rightfully  remain  in  the  possession  of  the 
leased  premises.  This  rule  has  in  substance  been  approved  by 
the  subsequent  cases,  and  may  be  regarded  as  the  prevailing 
rule  on  the  subject.^^     Thus,  where  the  tenant  holds  over  by 

10  See  London,  etc.,  Loan  &  Discount  Co.  v.  Drake,  6  C.  B.  (N.  S.),  798, 
810  (1859);  s.  c,  5  Jur.  (X.  S.),  1407;  28  L.  J.  (N.  S.),  C.  P.,  297; 
Merritt  v.  Judd,  14  Cal.,  59  (1859);  Thomas  v.  Crout,  5  Bush  (Ky.),  37, 
40  (1868)  ;  Cromie  v.  Hoover,  40  Ind.,  49  (1872)  ;  Allen  v.  Kennedy,  40 
Ind.,  142  (1872)  ;  Gibb.  Fixt.,  41.  See,  also,  Koffey  v.  Henderson,  17 
Q.  B.,  574,  586  (1851);  Mackintosh  v.  Trotter,  3  M.  &  W.,  184,  186 
(1838);  Heap  v.  Barton,  12  C.  B.,  274,  280  (1852);  King  v.  Wilcomb,  7 
Barb.,  263,  266  (1849).  [Youngblood  v.  Eubank,  68  Ga.,  630,  633  (1882); 
Douglass  V.  Anderson,  28  Kan.,  262,  265  (1882)  ;  Exchange  Bldg.  Co.  v.. 
Schuchman  Eealty  Co.,  103  Mo.  App.,  24  (1903)  ;  Brown  v.  Eeno  Power 
Co.,  55  Fed.,  229,  236  (U.  S.  C.  C,  Nev,,  1893) ;  Lewis  v.  Ocean  Pier  Co., 
125  >J.  Y.,  341,  351  (1891);  Pronguey  v.  Gurney,  36  Up.  Can.,  Q.  B.,  53, 
64  (1874);  Bacchus  Com.  v.  Federal  Soc,  22  Vict.  L.  K.,  181  (1895); 
see,  also.  Gray  v.  McLennan,  3  Man.,  337,  342   (1886).] 

[The  tenant  has  a  right  to  remove  his  fixtures  although  he  was  mistaken 
as  to  his  right  to  remain  after  the  expiration  of  his  term,  if  he  was 
misled  into  doing  so  by  the  conduct  or  language  of  the  landlord's  agent. 
It  is  not  necessary  that  there  should  be  a  formal  agreement  nor  an  exten- 
sion for  a  definite  time.  Donnelly  v.  Frick  &  Lindsay  Co.,  207  Pa.  St., 
597    (1904).] 

[Where  a  lessee  of  county  lands  has  the  right  to  remove  buildings  there- 
from while  in  possession,  but  has  not  done  so  because  be  believed  that  a 
new  lease  had  been  given  him,  the  board  of  supervisors  will  be  restrained 
from  removing  him  summarily.  Laiidon  v.  Schenectady  County,  31  Supr. 
Ct.   (24  Hun),  75   (N.  Y.,  1881).] 

[See,  also,  a  dictum  by  Cooley,  J.,  in  Kerr  v.  Kingsbury,  39  Mich.,  150, 
153  (1878),  that  the  requirement  that  the  tenant  shall  remove  during  his 
term  whatever  ho  claims  a  right  to  remove  at  all,  is  based  upon  a  rule 
of  public  policy  for  the  protection  of  the  landlord,  and  which  is  that  the 
tenant  shall  not  be  suffered,  after  he  has  surrendered  the  premises,  to 
enter  upon  tho  possession  of  the  landlord  or  of  a  succeeding  tenant,  to 
remove  fixtures  which  he  might  and  ought  to  have  taken  away  before.  A 
regard  for  the  succeeding  interests  is  the  only  subHtantial  reason  for  the 
rule  which  requires  the  tenant   to  remove  his  fixtures  during   the   term; 

205 


•143  THE  LAW  OF  FIXTURES.  [CUAP.  IV. 

iiuloed,  the  law  does  not  in  strictness  require  of  liim  that  lie  shall  remove 
them  durinj!;  the  term  but  only  before  he  surrenders  possession,  and  during 
tho  time  that  he  has  a  right  to  regard  himself  as  occupying  in  the  char- 
acter of  a  tenant.] 

In  Leader  v.  Homewood,  5  C.  B,  (N.  S.),  546,  553  (1858) ;  s.  c,  27  L. 
J.  (N.  S.),  C.  P.,  316;  4  Jar.  (N.  S.),  1062,  an  outgoing  tenant  who  had 
held  over  after  tlie  end  of  his  term,  having  partly  removed  his  goods,  the 
landlord  entered  before  certain  fixtures  were  severed  and  removed,  and  let 
the  defendant  into  possession,  who  refused  to  deliver  up  the  fixtures.  On 
an  action  brought  by  the  tenant  therefor,  the  jury  negatived  the  intention 
of  the  tenant  to  abandon  his  right  to  the  fixtures,  and  it  was  claimed  that 
his  right  to  remove  continued  till  he  had  evinced  such  intention  to  aban- 
don. Held,  that  this  was  clearly  incorrect,  and  that  at  the  time  of  his 
attempted  removal,  his  tenancy  having  ceased  by  re-entry,  the  right  of 
removal  was  at  an  end.  In  referring  to  the  rule  laid  down  in  Weeton  v. 
Woodcock,  Willes,  J.,  said:  "It  is,  perhaps,  not  easy  to  understand  fully 
what  is  the  exact  meaning  of  this  rule,  and  whether  or  not  it  justifies  a 
tenant  who  has  remained  in  possession  after  the  end  of  his  term,  and  so 
become  a  tenant  at  sufferance,  in  severing  the  fixtures  during  the  time  he 
continues  in  possession  as  such  tenant.  But  the  rule,  whatever  its  exact 
meaning  may  be,  is  plainly  inconsistent  with  the  argument  relied  on  by 
the  counsel  for  the  plaintiff  in  the  present  case,  viz, :  that  the  right  of 
the  tenant  continues  till  he  has  evinced  an  intention  to  abandon  his  right 
to  the  fixtures;  and  that,  consequently,  the  verdict  of  the  jury,  which 
has  negatived  any  such  intention,  is  conclusive  in  his  favor.  And  it  is 
unnecessary  to  consider  the  import  of  the  rule  with  reference  to  the  right 
of  a  tenant  at  sufferance  during  the  continuance  of  such  tenancy;  be- 
cause the  landlord  in  the  present  case  had  re-entered  and  thereby  put  an 
end  to  the  tenancy  before  the  plaintiff  attempted  to  enforce  his  right." 
In  Deeble  v.  McMuUen,  8  Ir.  Com.  Law,  355  (1857),  Monahan,  C.  J., 
remarked:  "What  is  to  be  the  criterion  of  the  tenant's  right  still  to 
consider  himself  a  tenant,  I,  for  one,  do  not  clearly  understand."  It  was, 
however,  held,  in  that  case,  ' '  that  a  tenant  who  remains  in  possession 
after  the  determination  of  his  tenancy  by  the  service  and  expiration  of  a 
regular  notice  to  quit,  without  any  liona  fide  right  so  to  do,  under  pre- 
tense of  a  right  to  a  renewal  which  had  been  long  previously  forfeited, 
cannot,  by  such  his  tortious  and  illegal  overholding,  acquire  a  right  as 
against  his  landlord  to  remove  fixtures, ' '  etc. 

[Where  a  tenant  holds  over  and  wrongfully  refuses  to  give  up  pos- 
session, he  can  not  remove  fixtures.  He  becomes  a  trespasser,  and  the  relation 
of  landlord  and  tenant  does  not  exist.  Barff  v.  Probyn  (1895),  64  L. 
J.,  Q.  B.,  557;  Dreiske  v.  People's  Lumber  Co.,  107  111.  App.,  285,  291 
(1903).] 

[The  possession  of  a  trustee  in  liquidation  who  disclaims  the  lease  under 
the  Bankruptcy  Act,  1869,  is  not  a  possession  under  the  rule  stated  in  the 
text.     Ex  parte  Brook  (1878),  10  Ch.  D.,  100,  109.] 

The  rule  is,  however,  different  where  the  tenant  remains  in  possession 

206 


CH^\P,  IV.]  WHEN  TO  BE  REMOVED.  *144 

♦consent  of  the  landlord,  after  the  time  for  which  the  [*14:-i] 
premises  were  originally  let,  such  holding  over  constitutes  a  ten- 
ancy from  year  to  year  upon  the  same  terms  and  conditions  as 
those  contained  in  the  lease,  and  the  right  of  removing  his  fix- 
tures is  not  thereby  lost.^  The  rule  that  the  right  of  a  tenant  to 
re*move  his  fixtures  must  be  exercised  during  the  term,  [*145] 
applies,  not  only  to  cases  where  the  tenancy  terminates  by  lapse 
of  time,  but  also  to  cases  where  it  is  determined  by  his  own  act. 
Thus,  he  may  renounce  his  right  to  remove  his  fixtures  by  a 
surrender  of  his  lease  to  his  landlord  without  reservation  f  and 

under  a  new  demise  of  the  premises,  without  exception  or  reservation  of 
the  right  of  removing  fixtures.  See  the  subject  considered  post,  page 
*172. 

iBircher  v.  Parker,  40  Mo.,  119  (1867);  s.  c,  43  Mo.,  443;  Mason  v. 
Fenn,  13  111.,  525,  529  (1852)  ;  Davis  v.  Moss,  38  Penn.  St.,  346,  353 
(1861);  Finney  v.  St.  Louis,  39  Mo.,  177  (1866).  See,  also.  White  v. 
Wakley,  26  Beav.,  17  (1858);  s.  c,  28  L.  J.  (N.  S.),  Chanc,  77.  [Ex 
parte  Hemenway,  2  Lowell,  496,   500    (U.  S.  Dist.  Ct.,   Mass.,   1876).] 

[Where  there  is  a  hokling  over  by  mutual  consent,  express  or  implied, 
the  right  of  the  tenant  after  the  termination  of  the  original  lease  to 
remove  the  building,  will  not  be  forfeited.  "And  in  the  absence  of 
opposing  evidence,  the  presumption  goes  that  the  tenant  does  so  hold 
over."     Xeiswanger  v.  Squier,  73   Mo.,  192,   198    (1880).] 

2  Talbot  V.  Whipple,  14  Allen,  180  (1867);  Shepard  v.  Spaulding,  4 
Met.,  416  (1842).  [Free  v.  Stuart,  39  Neb.,  220,  227  (1894);  Sampson 
V.  Camperdown  Mills,  64  Fed.,  939,  943  (U.  S.  C.  C,  S.  C,  1894)  ;  see, 
also,  Stewart  v.  Munford,  91  111.,  58  (1878)  ;  Darrah  v.  Baird,  12  Pitts. 
Leg.  J.,  240,  241  (1882) ;  Moss  v.  James  (1877),  47  L.  J.,  Q.  B.,  160,  aff 'd 
(1878)  38  L.  T.  Rep.,  595.]  [The  English  Bankruptcy  Act,  sec.  23,  pro- 
vides that  the  trustee  of  a  bankrupt  lessee  may  disclaim  a  lease,  and  that 
a  disclaimer  relates  back  to  the  adjudication.  Hence,  the  right  to  remove 
fixtures  is  lost  after  a  disclaimer,  although  the  trustee  is  still  in  pos- 
session. Ex  parte  Stephens  (1877),  7  Ch.  D.,  127;  Ex  parte  Glegg  (1881), 
19  Ch.  D.,  7,  16,  reversing  15  Co.  Ct.  &  Bankr.  Cas.,  240;  In  re  Moser 
(1884),  13  Q.  B.  D.,  738;  and  a  severance  of  fixtures  before  the  disclaimer 
is  wrongful.  Ex  parte  Brook  (1878),  10  Ch.  D.,  100,  108;  see  Ex  parte 
Foster  (1878),  13  Co.  Ct.  &  Bankr.  Cas.,  467,  468.]  In  Ombony  v.  Jones, 
19  N.  y.,  234  (1S.-)9);  s.  C,  21  Barb.,  520,  a  tenant  at  will  of  the  prin- 
cipal tenant  erected  fixtures  on  the  demised  premises,  and  Rubso(|uontly 
and  before  the  termination  of  the  original  lease,  both  original  and  sub- 
lessee surrendereil  tlnir  interests  to  the  original  lessor;  the  sub-lessee, 
however,  continued  to  o((ui)y,  agreeing  to  quit  when  required  by  the  orig- 
inal lessor,  in  which  relation  of  tenant  at  will  he  coniinned  down  to  the 
tim?  of  the  attempted  removal  of  the  fixtures  by  the  vendee  thereof  on  a 

207 


•145  THE  L.VW  OF  FIXTURES.  [CIIAP.  IV. 

such  siirreuder  may  be  implied  from  the  acts  of  the  tenant,  as 
by  his  abandoninj?  the  premises  under  such  circumstances  as 
to  indicate  a  purpose  not  only  to  cease  to  occupy  and  control 
them,  but  also  to  permit  the  landlord  to  resume  possession 
thereof.-'  Ilowever,  the  volimtary  surrender  of  his  lease  by  a 
tenant  to  his  landkird  will  not  defeat  or  annul  the  previously 
acquired  rights  of  his  sub-tenants,  vendees,  or  mortgagees,  not 
parties  or  privies  thereto;^  and  therefore  where  a  lessee  mort- 

sale  umlor  a  judgmeut  to  enforce  a  mechanic's  lieu  thereon  which  accrued 
before  such  surrender,  the  sale  being  made  after  the  surrender,  and  such 
sub-lessee  having  made  no  arrangement  professing  to  abandon  such  fix- 
tures. Held,  that  no  rights  were  lost  by  such  delay.  In  this  case  Penton 
V.  Kobart  is  cited  as  authority,  but  it  is  to  be  observed  that  the  continued 
possession  of  the  sub-lessee  was  a  lawful  one,  as  a  tenant  at  will. 

3  Talbot  V.  Whipple  (supra).  [See  Waterman  v.  Clark,  58  Vt.,  601 
(18S6).] 

[Where  a  tenant  abandons  the  premises,  leaving  a  steam  engine  fas- 
tened to  a  stone  in  the  ground,  and  a  boiler  surrounded  by  brick  masonry, 
they  can  not  be  levied  upon  as  his  property.  Donnewald  v.  Turner  Co., 
44  Mo.  App.,  350    (1891).] 

[Where  the  defendant  in  his  plea  disclaims  title  and  possession  of  the 
premises  at  the  commencement  of  the  action,  it  is  a  solemn  admission, 
and  no  act  of  entry  was  necessary  by  the  plaintiff.  Carr  v.  Georgia  R.  E., 
74  Ga.,  73,  80    (1884).] 

4  See  London  and  Westminster  Loan,  etc.,  Co.  v.  Drake,  6  C.  B.  (N.  S.), 
798  (1859);  McKenzie  v.  Lexington,  4  Dana,  129  (1836);  Baker  v.  Pratt, 
15  111.,  571  (1854)  ;  Adams  v.  Goddard,  48  Me.,  212  (1859) ;  Pigott  v. 
Stratton,  29  Law  Jour.  (N.  S.),  Chanc,  1  (1859);  s.  c,  6  Jur.  (N.  S.), 
1290;  1  L.  T.  (N.  S.),  Ill;  Saint  v.  Pilley,  L.  R.  10  Exch.,  137  (1875); 
Co.  Lit.,  338  b,  and  cases  therein  cited.  [Morrison  v.  Sohn,  90  Mo.  App., 
76,  81  (1901)  ;  Duffus  v.  Bangs,  50  Supr.  Ct.  (43  Hun),  52,  55  (N.  Y., 
1887);  see,  also,  Chamberlain  v.  McCarthy,  66  Supr.  Ct.  (59  Hun),  158 
(N.  Y.,  1891);  Conde  v.  Lee,  55  App.  Div.,  401  (1901),  aff 'd  171  N.  Y., 
662    (1902).] 

[The  presumption  is  in  favor  of  the  landlord,  and  a  buyer  from  the 
tenant  must  show  that  the  latter  had  title  at  the  time  of  the  purchase. 
Nolan  V.  Eotsler,  135  Cal.,  264   (1901).] 

[Where  machinery  is  placed  in  a  mill  in  possession  of  a  tenant  for  sixty 
days'  trial,  but  is  suffered  to  remain  therein  long  after  said  sixty  days, 
and  long  after  the  tenant  has  surrendered  possession,  the  owners  of  the 
machinery  lose  their  right  to  remove  it,  the  owners  of  the  land  having  no 
notice.     Hamilton  v.  Huntley,   78  Ind.,  521,   527    (1881).] 

[The  surrender  of  a  lot  by  a  tenant  does  not  relieve  him  from  liability 
for  injuries  occasioned  by  the  fall  of  a  fence  erected  thereon  by  him. 
Hussey  v.  Eyan,  64  Md.,  426,  434   (1885).] 

208 


CHAP.  rV.]  WHEN  TO  BE  REMOVED.  *l-46 

gaged  his  removable  fixtures,  and  afterwards  surrendered  his 
lease  to  the  lessor,  who  granted  a  new  term  to  a  third  person, 
the  fixtures  in  question  still  remaining  upon  the  premises  un- 
severed,  it  was  held  that  the  mortgagees  had  a  right  to  enter 
*and  sever  the  fixtures,  it  not  being  competent  for  the  [*146] 
tenant  to  defeat  his  grant  by  such  subsequent  voluntary  sur- 
render.^ 

5  See  London  and  Westminister  Loan,  etc.,  Co.  v.  Drake,  6  C.  B.  (N.  S.), 
798  (1859);  s.  c,  28  L.  J.  (N.  S.),  C.  P.,  297;  5  Jur.  (N.  S.),  1407; 
Ombony  v.  Jones,  19  X.  Y.,  234,  239  (1859);  Adams  v.  Goddard  (supra), 
where,  however,  the  third  person  was  a  vendee  instead  of  a  mortgagee. 
See,  however,  Talbot  v.  Whipple,  14  Allen,  177,  182  (1867),  where  it  is 
said,  "that  the  plaintiffs  can  claim  no  better  title  to  the  property  in  con- 
troversy than  that  which  was  vested  in  the  tenant  under  whom  they  claim 
as  mortgagees.  When  the  mortgage  was  made  the  building  and  machine 
were  fixtures  annexed  to  the  realty  of  the  defendant  by  his  tenant,  and 
which  the  defendant  had  then  the  inchoate  right  to  claim  as  part  of  the 
freehold  if  not  seasonably  disannexed  before  the  term  was  ended."  The 
surrender  in  this  case  was  not  express,  but  by  implication,  and  the  authori- 
ties above  referred  to  do  not  seem  to  have  been  brought  to  the  attention 
of   the   court, 

[Where  lessor  declares  a  forfeiture  and  takes  possession  of  the  leased 
premises,  without  showing  facts  warranting  such  declaration,  it  will  bo 
treated  as  a  surrender  by  the  lessee,  and  will  not  affect  liens  upon  the 
leasehold  estate  for  fixtures  attached  to  the  realty  by  the  lessee.  Dob- 
schuetz  V.  Holliday,  82  111.,  371,  374  (1876).  But  chattel  mortgagees 
must  remove  before  the  lease  would,  by  its  terms,  have  expired.  Free  v. 
Stuart,  39  Neb.,  220,  227  (1894).] 

[The  seller,  reserving  title,  of  articles  wiiich  would  be  treated  as  trade 
fixtures,  can  remove  them  after  surrender  by  the  tenant  to  his  landlord, 
especially  if  demand  is  made  before,  and  removal  refused.  "  Tlio  position 
of  the  owner  of  goods  which  the  tenant  has  affixed  to  the  demised  prem- 
ises can  not  be  less  strong  than  that  of  the  tenant's  assignee."  Joseph 
Hall  Mfg.  Co.  v.  Hazlett,  11  Up.  Can.  App.,  749  (1885),  aff'g  8  Ont., 
465  (1885).  iMedicke  v.  Sauer,  61  Minn.,  15  (1895).  In  the  latter  case 
demand  was  not  made  until  several  months  after  the  tenant  abandoned  the 
premises,  and  nearly  eleven  months  after  the  last  payment  was  due, 
no  payments  having  been  made,  and  the  landlord  mo.-nnvhilc  m;iking  now 
leases.  J 

[Judgment  of  dispossession  of  a  tenant,  in  favor  of  one  holding  the 
lease  as  security,  after  the  tenant  has  surrendered  possession  to  his  land- 
lord, can  not  estop  the  tenant,  in  an  action  against  his  landlord,  from 
claiming  fixtures  under  an  agreement  with  his  lan<ll<)r<l,  whore  the  land- 
lord was  not  a  party  to  the  dispossession  proceedings,  and  claimed  title 
to  the  fixtures.     Thorn  v.  Sutherland,  123  N.  Y.,  236,  240    (1890).] 

"  209 


•146  TUE  LAW  OP  FIXTURES.  [CHAP.  IV. 

The  right  of  the  tenant  to  remove  fixtures  may  also  be  lost 
by  his  leaving  them  annexed  to  the  premises  after  the  termi-_ 
nation  of  the  lease  by  entry,  or  recovery  of  possession  of  the 
premises  in  ejectment,  to  enforce  a  forfeiture.*^    But  as  the  hap- 

See,  also,  Thropp's  Appeal,  70  Penn.  St.,  395  (1872).  In  this  case 
Thropp  leased  to  Gagg  a  lot  on  which  were  a  mill  and  other  buildings,  who 
erected  thereon  a  frame  building  for  trade  purposes,  which  the  tenant  had 
a  right  to  remove  at  the  end  of  his  term.  This  building  was  afterwards 
levied  on  as  a  removable  trade  fixture  during  the  term  under  an  execution 
against  Gagg,  who  subsequently  for  a  valuable  consideration  surrendered 
his  term  to  Thropp,  who  had  no  notice  of  such  levy,  and  who  took  pos- 
session. The  constable  afterwards  sold  the  building  on  the  execution. 
Held,  that  the  purchaser  could  not  remove  the  building.  Had  the  con- 
stable given  the  landlord  notice  of  the  levy,  such  surrender  would  not 
have  prevailed  over  the  lien  of  the  levy;  but  the  property  not  being  sus- 
ceptible of  manucaption,  which  might  have  been  treated  as  notice  in  law, 
and  being  lyrima  facie  real  estate,  of  which  the  creditor  must  have  taken 
notice  so  as  to  put  him  on  inquiry  as  to  its  real  character,  notice  of  levy 
was  necessary  to  enable  the  landlord  to  protect  his  rights.  [See,  post,  p. 
*358.] 

[The  right  to  levy  upon  trade  fixtures  must  be  exercised  while  the  tenant 
remains  in  possession.     Donnewald  v.  Turner  Co.,  44  Mo.  App.,  350,  352.] 

6  See  Weeton  v.  Woodcock,  7  M.  &  W.,  14  (1840);  Pugh  v.  Arton,  L. 
E.,  8  Eq.,  626  (1869);  s.  C,  38  L.  J.  (N.  S.),  Ch.,  619;  20  L.  T.  (N.  S.), 
865;  17  W.  E.,  984;  Davis  v.  Eyton,  7  Bing.,  154  (1830);  Minshall  v. 
Lloyd,  2  M.  &  W.,  450  (1837),  recovery  in  ejectment;  Whipley  v.  Dewey, 
8  Cal.,  36  (1857).  See,  also,  Kutter  v.  Smith,  2  Wall.,  491  (1864); 
Storer  v.  Hunter,  3  B.  &  C,  368  (1824)  ;  Fairburn  v.  Eastwood,  6  M.  & 
W.,  679  (1840).  [Little  Falls  Water  Power  Co.  v.  Hansdorf,  127  Fed., 
442,  444  (U.  S.  C.  C,  Minn.,  1904);  Erickson  v.  Jones,  37  Minn.,  459, 
460  (1887);  Friedlander  v.  Eyder,  30  Neb.,  783,  788  (1890);  Van  Vleck 
v.  White,  66  App.  Div.,  14,  17  (N.  Y.,  1901)  ;  Massachusetts  Nat.  Bank  v. 
Shinn,  18  App.  Div.,  276  (1897),  aff'd  163  N.  Y.,  360,  362  (1900); 
Official  Assignee  v.  Maxwell,   11  N.  Z.,   312    (1892).] 

[An  attaching  creditor  must  remove  fixtures  while  the  tenant's  right 
to  remove  them  exists.  Where  the  landlord  re-enters,  for  non-payment  of 
rent,  the  creditor's  right  to  removal  is  lost;  though  the  court  intimates 
that  if  the  creditor  had  paid  the  rent,  a  court  of  equity  would  have  aided 
him.     Morey  v.  Hoyt,  62  Conn.,  542,  552  (1893).] 

[A  landlord  dispossessing  a  tenant  acquires  no  title  to  lamps  as  against 
a  conditional  seller  thereof.  Lange  v.  Pisch,  61  N.  Y.  St.  Eep.,  Ill 
(1894) ;  nor  as  against  a  mortgagee.  Be  Glasdir  Copper  Mines  [1904], 
1  Ch.,  819.] 

[For  decisions  contra  to  the  rule  stated  in  the  text,  see  Updegraflf  v. 
Lesem,  15  Colo.  App.,  297,  307   (1900);   Meader  v.  Brown,  5  N.  Y.  St. 

210 


CHAP.  IV,]  WHEN  TO  BE  REMO\Tn).  *147 

pening  of  a  cause  of  forfeiture  does  not  ordinarily  of  itself 
render  the  lease  void,  but  voidable  only  at  the  election  of  the 
lessor/  the  right  of  the  tenant  to  remove  his  fixtures  is  not 
•thereby  lost  unless  and  until  the  landlord  takes  steps  to  [*147] 
enforce  the  forfeiture.^ 

Eep.,  839,  840  (1886) ;  but,  in  the  latter  ease,  the  lessor  disavowed  owner- 
ship, and  possession  seems  to  have  been  withheld  by  an  incoming  tenant. 
See,  also,  Ex  parte  Gould  (1884),  13  Q.  B.  D.,  454,  where,  under  certain 
clauses  in  the  lease,  the  receiver  in  bankruptcy  was  held  entitled  to 
fixtures  notwithstanding  forfeiture.] 

[Where  the  lease  expressly  gave  the  lessee  the  right  to  remove  ma- 
chinery, such  right  is  not  lost  by  forfeiture  of  the  lease  after  the  lessee 
had  made  an  assignment  for  the  benefit  of  creditors.  Scarth  v.  Ontario 
Power  Co.,  24  Ont.,  446   (1894).] 

7  See  Clark  v.  Jones,  1  Den.,  516  (1845) ;  Stuyvesant  v.  Davis,  9  Paige, 
427  (1842);   The  Fifty  Associates  v.  Howland,  11  Met.,  99   (1846). 

The  above  remarks  of  course  do  not  apply  in  cases  where  the  estate  is  so 
confined  and  limited  as  to  create  a  limitation,  as  distinguished  from  a 
condition.     See  2  Bl.,  Com.,  155. 

sKeogh  V.  Daniell,  12  Wis.,  163  (1860).  [See,  also.  Carper  v.  Kisdon, 
76  Pac,  744,  745  (Colo.  App.,  1904);  Winkler  v.  Gibson,  2  Kan.  App., 
621  (1895);  and  Ex  parte  Hemenway,  2  Lowell,  496,  499  (U.  S.  Dist. 
Ct.,  Mass.,  1876).] 

But  where  the  landlord  was  already  in  possession  for  all  purposes  except 
mining,  the  tenant  having  in  violation  of  the  terms  of  the  lease  abandoned 
his  mining  operations  for  twelve  months  or  more,  no  entry  was  deemed 
necessary.  Davis  v.  Moss,  38  Penn.  St.,  346  (1861).  In  Pennsylvaniaj 
however,  the  rule  on  this  subject  is  peculiar,  the  forfeiture  there  depend- 
ing on  the  terms  of  the  instrument,  unless  there  be  evidence  to  affect  the 
landlord  with  a  waiver  of  the  breach,  like  the  receipt  of  rent  or  other 
unequivocal  act.     Ibid. 

[If  the  term  is  forfeited,  the  landlord  can  not  claim  fixtures  of  the 
tenant  seized  by  the  sheriff  before  judgment  in  ejectment.  Donkin  v. 
Crombie,  11  Up.  Can.  C.  P.,  601,  605.] 

[The  tenant  in  possession  can  remove  fixtures  on  the  day  notice  of 
forfeiture  is  received.  Arglcs  v.  McMath,  23  Ont.  App.,  44,  45  (1896), 
aff'g  26  Ont.,  224,  247   (1895).] 

[Where  the  tenant  abandons  the  lease,  having  the  right  to  remove  his 
property,  the  landlord  can  not  detain  the  fixtures  because  the  tenant  has 
failed  to  keep  his  contract  when  the  landlord  has  taken  no  action  against 
the  tenant  to  enforce  the  covenant.  Patterson  v.  Hausbeck,  8  Pa.  Super., 
36    (1898).] 

[Where  the  demised  premises  are  owned  in  common  by  the  lessors, 
notice  of  forfeiture  by  one  of  them  to  the  lessee,  and  such  lessor's  subse- 
quent entry,  where  he  does  not  purport  to  act  for  the  others  and  there  is 

211 


*l-i7  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

The  rule  that  the  right  of  removal  must  be  exercised  before 
the  expiration  of  the  tenancy  is  also  necessarily  subject  to 
qualification  in  those  cases  where  the  tenancy  is  of  uncertain 
duration,  and  is  liable  to  be  determined  by  the  happening  of 
some  contingent  or  uncertain  event  on  which  it  depends,  or  by 
the  act  of  the  lessor,  as  in  the  case  of  the  tenancy  at  will.  In 
such  a  case  the  tenant's  right  of  removal  is  not  terminated 
until  after  he  has  had  a  reasonable  time  after  the  happening  of 
the  event,  or  the  determination  of  his  will  by  the  lessor,  for 
the  exercise  of  such  right.^     But  a  tenant  at  will,  having  no 

no  evidence  of  agency  or  ratification,  do  not  afi'ect  the  lessee's  right  to 
remove  fixtures  before  the  expiration  of  the  term.  Updegraff  v.  Lesem, 
15  Colo.  App.,  297,  309    (1900).] 

[Where  the  lease  gives  the  tenant  the  right  to  remove  buildings,  and 
also  provides  that,  upon  failure  to  pay  rent,  he  shall  forfeit  all  rights  in 
the  lease,  and  shall  deliver  up  possession  with  all  improvements,  the  land- 
lord must  enforce  his  right  of  forfeiture  during  the  term;  otherwise  it  is 
waived.     Cheatham  v.  Plinke,  1  Tenn.  Ch.,  576,  580    (1874).] 

•J  See  Ombony  v.  Jones,  19  N.  Y.,  238  (1859)  ;  Antoni  v.  Belknap,  102 
Mass.,  193,  200  (1869);  Haflick  v.  Stober,  11  Ohio  St.,  482,  485  (1860); 
Northern  Central  R'w'y  Co.  v.  Canton  Co.,  30  Md.,  347,  355  (1868);  Law- 
ton  v.  Lawton,  3  Atk.,  13  (1743);  Dudley  v.  Warde,  1  Ambl.,  113  (1751). 
See,  also,  Stansfield  v.  Mayor  of  Portsmouth,  4  C.  B.  (N.  S.),  120  (1858)  ; 
Sumner  v.  Bromilow,   11  Jur.    (N.  S.),  481    (1865). 

In  the  case  of  Antoni  v.  Belknap,  on  the  trial  of  the  issue  whether  a 
tenant  whose  term  was  defeasible  on  a  contingency  and  had  been  termi- 
nated by  demand  of  possession,  removed  a  fixture  within  a  reasonable 
time  after  the  demand  of  possession,  it  appeared  that  the  fixture  in  ques- 
tion was  an  ice-house  containing  at  the  time  of  demand  upwards  of  two 
thousand  tons  of  ice;  that  except  by  the  sale  of  one  hundred  tons  in  a 
lot,  the  ice  was  not  removed  after  the  demand  faster  than  was  necessary 
to  supply  the  tenant's  customers,  about  two  months  being  consumed  in  its 
removal;  that  the  ice  would  have  become  porous  and  of  little  value  had 
it  been  removed  to  another  building  at  that  time  of  the  year,  and  that  the 
building  was  removed  immediately  after  the  removal  of  the  ice;  the 
landlord  offered  no  evidence  that  the  defendants  could  in  any  way  have 
removed  the  ice  faster  than  they  did,  or  that  they  could  have  removed  the 
building  quicker,  but  the  plaintiff  and  other  witnesses  testifie'd  that  the 
defendants  got  the  ice  away  as  soon  as  possible  after  his  demand  upon 
them  for  possession.  Held,  that  considering  the  nature  and  quality  of  the 
property  to  be  removed,  and  the  absence  of  evidence  that  any  other  mode 
of  removal  was  practicable  (there  being  no  dispute  about  the  facts),  that 
the  removal  was  within  a  reasonable  time. 

Where  there  is  no  dispute  as  to  the  facts,  the  question  as  to  what  is  a 
reasonable  time,  it  seems,  is  for  the  court.     Ibid. 

212 


CHAP.  IV.]  WHEN  TO  BE  REM0\T:D.  *148 

♦estate  which  is  assignable,  cannot  without  severance,  [*148] 
by  a  sale  of  fixtures  annexed  by  him  during  his  tenancy  to  a 
third  person  who  enters  and  holds  as  tenant  of  the  landlord, 
confer  upon  such  third  person  a  right  of  removal  as  against  the 
landlord  after  such  original  tenant  has  gone  out  of  possession.^ 

[For  eases  sustaining  the  statement  made  in  the  text,  see  Sullivan  v. 
Carberry,  67  Me.,  531,  532  (1877);  Wittenmeyer  v.  Board  of  Education, 
10  Ohio  C.  C,  119,  123  (1895);  Cassell  v.  Crothers,  193  Pa.  St.,  359 
(1899);  Gardiner  v.  Parker,  18  Gr.  Ch.,  26,  29  (Ont.,  1871);  Clarke  v. 
Tresider,  4  Wyatt,  W.  &  A.,  164  (Viet.,  1867)  ;  see,  also,  Goodwin  v. 
Perkins,  134  Cal.,  564  (1901) ;  Moss  v.  James  (1877),  47  L.  J.,  Q.  B.,  160, 
aff'd   (1878)   38  L.  T.  E.,  595.] 

[Where  a  trespasser  moves  a  house  upon  the  land  of  another,  and  the 
landowner  recovers  a  judgment  for  rent,  such  trespasser  becomes  a  tenant 
at  will;  but  if  such  tenant  refuses  to  remove  the  building  after  having 
been  repeatedly  urged  to  do  so,  and  the  landlord  takes  possession,  the 
right  of  removal  is  lost.     Sullivan  v.  Carberry,  67  Me.,  531,  532   (1877).] 

[Where  tenure  is  uncertain,  tenant  is  allowed  a  reasonable  time  to 
remove  fixtures  after  it  is  determined  unexpectedly  to  him;  but  where, 
by  statute,  leases  at  will  can  only  be  terminated  after  reasonable  notice, 
the  term  becomes  certain  enough  that  the  general  rule  that  fixtures  must 
be  removed  before  its  expiration  applies.  Erickson  v.  Jones,  37  Minn., 
459,  460    (1887).] 

[Where  a  lease  provided  that  if  the  tenant  made  an  assignment  for  the 
benefit  of  creditors  the  term  should  be  forfeited,  the  assignee  in  possession 
has  a  reasonable  time  in  which  to  remove  trade  fixtures.  Argles  v.  Mc- 
Math,  23  Ont.  App.,  44  (1896),  aflf'g  26  Ont.,  224,  247  (1895).] 

[Where  a  statute  gave  the  holder  of  a  miner's  right  "at  any  time  to 
remove  any  building,"  held,  that  the  right  was  analogous  to  that  of  a 
tenant  at  common  law,  and  that  at  the  farthest  such  erections  must  be 
removed  within  a  reasonable  time  after  the  term  expired.  Summers  v. 
Cooper,  4  Austr.  Law  T.,  57   (1882).] 

[In  Official  Assignee  v.  Maxwell,  11  N.  Z.,  312,  316  (1892),  six  months 
was  held  not  to  be  a  reasonable  time;  and  in  Meader  v.  Brown,  5  N.  Y.  St. 
Eep.,  839,  840  (1886),  it  is  said  that  what  is  a  reasonable  time  is  for  the 
jury  to  determine.] 

[Where  a  lease  provides  that  it  shall  "continue  from  month  to  month 
during  the  pleasure  of  the"  lessee,  and  that  the  lessee  has  "the  right  to 
remove  or  dispose  of  *  *  *  buildings  situated  upon  the  property  sur- 
rendered at  such  time  as  may  be  convenient  to ' '  him,  the  lessee  can  not, 
by  giving  notice,  and  remaining  in  exclusive  control  of  the  premises  while 
he  disposes  of  the  buildings,  terminate  his  liability  for  rent  for  the  time 
occupied  in  disposing  of  the  buildings.  Morgan  v.  United  States,  14  Ct. 
CI.,   319    (1878)..] 

iDingley  v.  Buffum,  57  Me.,  381  (1869).  [Wake  v.  Hall  (1880),  7  Q. 
B.  D.,  295;  see,  also,  Stout  v.  Stoppel,  30  Minn.,  56,  58   (1882).] 

213 


*14S  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

It  is  to  be  observed  that,  as  has  already  been  seen,  property 
afifixed  to  the  land  of  another  by  his  license  is  personal  prop- 
erty, and  is  not  within  the  rule  reiiuiring  fixtures  to  be  re- 
moved by  a  tenant  during  his  term.^  And  a  license  to  erect  a 
building  or  other  structure  upon  the  land  of  another  cannot 
be  revoked  so  as  to  make  the  owner  of  the  structure  a  tres- 
passer for  entering  and  removing  the  same  within  a  reasonable 
time  after  such  license  is  countermanded.^  But  though  his  title 
to  such  structure  might  not  be  lost  by  leaving  it  on  the  premises, 
yet,  if  after  the  determination  of  the  license  he  should  not  re- 
move the  structure  within  a  reasonable  time,  he  would  probably 
be  liable  in  trespass  for  a  subsequent  entry  to  remove  it.'* 

Usually  the  temporary  interest  of  the  tenant  in  the  land  he 
occupies  is  limited  by  a  term  of  years,  or  the  termination  of  a 

2 Northern  Central  Ewy.  Co.  v.  Canton  Co.,  30  Md.,  347  (1868).  See, 
also,  ante,  pp.  *125,  *141,  [Sagar  v.  Eckert,  3  111.  App.,  412,  417  (1879)  ; 
Western  N.  C.  E.  K.  v.  Deal,  90  N.  C,  110,  113   (1884).] 

[Where  a  grantor  of  land  has  a  personal  license  to  operate  oil  wells 
upon  the  land  and  to  remove  mining  machinery  therefrom,  this  right  ter- 
minates with  his  death.     Shields  v.  Delo,  145  Pa.  St.,  393,  398   (1891).] 

3  See  Barnes  v.  Barnes,  6  Vt.,  388  (1834);  Preston  v.  Briggs,  16  Vt., 
129  (1844),  and  the  cases  cited  in  next  note.  [Salley  v.  Eobinson,  96  Me., 
474,   478    (1902).] 

[Where  a  person  is  sued  for  trespass  upon  land  and  hauling  away  a 
frame  house,  a  defense  that  he  built  the  house  upon  the  land  of  the 
plaintiff  under  a  license,  with  the  intention  of  removing  the  same,  and 
that  he  removed  the  same  in  good  faith  doing  no  unnecessary  damage  to 
the  premises,  is  sufficient.     Schoonover  v.   Irwin,  58  Ind.,   287    (1877).] 

[The  owner  of  land  selling  a  house  thereon,  impliedly  licenses  the  pur- 
chaser to  enter  and  remove  it,  and  such  license  can  not  be  revoked,  and  is 
a  sufficient  defense  to  an  action  for  trespass.  Sogers  v.  Cox,  96  Ind.,  157, 
158    (1884).] 

4  See  Corey  v.  Bishop,  48  N,  H.,  146  (1868);  Dame  v.  Dame,  38  N.  H., 
429  (1859).  [See  Halstead  v.  American  Gas  Co.,  17  Pa.  Super.,  605 
(1901).] 

[Where  a  house,  erected  by  license  of  the  landowner,  is  not  removed 
within  a  reasonable  time  after  the  builder  is  dispossessed,  it  becomes  a 
part  of  the  realty.     Turner  v.  Kennedy,  57  Minn.,  104,  107   (1894).] 

[Where  a  railroad  company,  owing  to  a  change  in  its  route  ordered  by 
the  legislature,  and  which  required  an  indefinite  period  of  time  to  make, 
gave  up  possession  of  a  brick  freight  station,  it  did  not  lose  the  right  to 
remove  the  station  two  years  later  when  it  required  it  in  the  erection  of  a 
new  depot  on  its  new  line.  Western  N.  C.  E.  E.  v.  Deal,  90  N.  C,  110 
(1884).] 

214 


CHAP.  IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL.  *149 

specified  life.  But  in  the  ease  of  letting  of  land  for  the  pur- 
pose of  nurturing  trees  and  plants  until  they  are  ready  to  be 
transplanted,  in  the  absence  of  any  express  agreement,  it  is 
held,  that  the  interest  of  the  tenant  in  the  land  for  the  pur- 
pose contemplated  by  the  parties,  continues  until  that  purpose 
is  accomplished.^ 

*V.     Of  the  Right  of  Removing  Fixtures  as  Affected  [*149] 
BY  Special  Agreements  in  Relation  Thereto.^ 

Having  in  the  last  section  considered  the  general  right  of  a 
tenant  as  against  his  landlord  to  remove  his  fixtures  in  the  ab- 
sence of  any  special  agreement  between  the  parties  affecting 
the  question,  we  come  now  to  consider  the  effect  upon  such  right 
of  removal,  of  agreements  on  the  subject  between  the  parties. 

It  is  well  settled  that  the  general  right  of  removing  fixtures 
erected  by  the  tenant  during  his  term,  as  also  the  time  within 

[Where  a  railway  company  abandons  a  track  whicli  has  been  laid  upon 
land  over  which  it  had  an  easement,  the  rails  pass  to  the  owner  of  the 
land.  Missouri  Pac.  K'y  Co.  v.  Bradbury,  79  S.  W.,  966  (Mo.  App., 
1904).] 

5  King  V.  Wilcomb,  7  Barb.,  263  (1849).  In  this  case  by  the  consent  of 
one  member  of  the  firm,  the  firm  removed  to  land  owned  by  such  member 
individually  a  portion  of  their  trees  and  shrubs,  who,  after  such  trees,  etc., 
were  planted,  mortgaged  said  land  to  a  third  person,  and  the  land  was  sold 
thereon,  neither  the  mortgagee  nor  the  purchaser  at  such  sale  being  en- 
titled to  protection  as  bona  fide  purchasers  without  notice;  and  it  was 
held,  that  the  relation  of  landlord  and  tenant  was  created  by  the  permis- 
sion to  occupy  the  land ;  that  there  was  implied  a  license  to  remove  the 
property  planted  when  the  proper  period  of  removal  sliould  arrive,  and 
that  the  other  member  of  the  firm  might  enforce  his  rights  against  such 
mortgagee  and  purchaser  to  the  same  extent  as  he  might  have  done  against 
the  mortgagor  had  the  title  still  remained  in  him.  See  Miller  v.  Baker, 
1  Met.,  27  (1S40);  also,  the  rights  of  tenants  who  are  nurserymen,  con- 
sidered ante,  p.   *106. 

1  This  section  relates  mainly  to  annexations  made  by  the  tenant  himself, 
and  not  to  those  made  by  parties  not  sustaining  tlio  relation  of  landlord 
and  tenant  or  by  tlie  landlord  and  in  existence  at  the  time  of  making  the 
demise.  In  a  few  instances,  however,  cases  have  been  referred  to  in  the 
notes,  where  the  questions  arose  between  parties  not  sustaining  the  rela- 
tion of  landlord  and  tenant.  Such  cases,  however,  were  exceptional,  and 
seemed  more  properly  to  belong  to  this  section  than  to  any  other  part  of 
the   work. 

215 


*150  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

Avhieh  he  may  exercise  that  right,  are  ahnost  entirely  within 
the  control  of  the  parties,  and  may,  as  between  the  landlord 
and  tenant,  be  restricted,  modified,  or  extended,  according  to 
the  agreement  of  the  parties,-  subject,  of  course,  to  the  limita- 
tion that  such  agreement  does  not  violate  the  express  provisions 
of  any  law,  and  that  the  interest  of  the  public  generally,  or  of 
third  persons  in  particular,  shall  not  be  injuriously  affected  by 
its  fultillment.  Subject  to  these  limitations,  modus  et  conven- 
[*150]  *tio  vincunt  legem.^  In  like  manner  property  annexed 
to  the  realty  by  a  tenant,  and  which  would  otherwise  be  realty, 
may,  by  a  previous  agreement  between  himself  and  the  landlord, 
be  made  to  continue  to  be  personal  property  after  and  notwith- 
standing such  annexation;  and  where,  by  agreement  between 
landlord  and  tenant,  the  right  of  removing  fixtures  is  reserved 
to  the  tenant,  it  seems  that  such  fixtures  remain  personal  prop- 
erty and  are  removable  as  such  by  the  tenant,  the  rule  in  such 
case  being  the  same  as  laid  down  in  a  previous  chapter."*     It  is 

2  See  Merritt  v.  Judd,  14  Cal.,  59,  70  (1859)  ;  McCracken  v.  Hall,  7  Ind., 
30  (1855);  White's  Appeal,  10  Penn.  St.,  252  (1849).  See,  also,  ante, 
Chap.  3.  [Larquier  v.  White,  29  La.  Ann.,  156  (1877) ;  O'Brien  v.  Mueller, 
96  Md.,  134,  137    (1902).] 

[An  agent  employed  by  the  landlord  to  lease  premises  and  collect  rent, 
has  no  authority  to  permit  a  tenant  to  remove  fixtures  which  are  a  part 
of  the  premises,  or  divest  the  landlord  of  his  ownership  of  such  fixtures 
by  anything  he  might  say  or  do.  Gauggel  v.  Ainley,  83  111.  App.,  582, 
587    (1898).] 

[A  clause  permitting  the  removal  of  articles  which  are  trade  fixtures, 
confers  no  right  which  the  tenant  would  not  have  had  without  it.  Upde- 
grafif  V.  Lesem,  15  Colo.  App.,  297,  308   (1900).] 

3  Broom  Leg.  Max.,  661,  et  seq. 

4  White's  Appeal,  10  Penn.  St.,  252  (1849);  Hartwell  v.  Kelly,  117 
Mass.,  235  (1875),  and  cases  there  cited;  Alexander  v.  Touhy,  13  Kan.,  64 
(1874);  Adams  v.  Goddard,  48  Me.,  212  (1859).  [Broaddus  v.  Smith, 
121  Ala.,  335  (1898);  Chalifoux  v.  Potter,  113  Ala.,  215,  219  (1896); 
Denver  Transfer  &  Warehouse  Co.  v.  Swem,  8  Colo.,  Ill,  112  (1884)  ;. 
Parker  v.  Eedfield,  10  Conn.,  490,  496  (1835);  First  Nat.  Bank  of  Joliet 
V.  Adam,  34  111.  App.,  159  (1889);  McCarthy  v.  Burnet,  84  Ind.,  23 
(1882)  ;  Price  v.  Malott,  85  Ind.,  266,  269  (1882)  ;  Morrow  v.  Burney,  2 
Ind.  Ter.,  440,  443  (1899) ;  McCarthy  v.  Trumacher,  108  Iowa,  284 
(1899);  Brinkmeyer  v.  Eankin,  22  Ky.  Law  Eep.,  1881,  1882  (1901); 
O'Brien  v.  Mueller,  96  Md.,  134,  137  (1902);  Korbe  v.  Barbour,  130 
Mass.,  255,  258  (1881);  Lake  Superior  Iron  Co.  v.  McCann,  86  Mich.,  106 
(1891);  Booth  v.  Oliver,  67  Mich.,  664,  668  (1888);  Osborn  v.  Potter,  101 

216 


CHAP.  IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL.  *150 

Mch.,  300  (1894)  ;  Pioneer  Co.  v.  Fuller,  57  Minn.,  60,  62  (1894)  ;  Xeis- 
Tvanger  v.  Squier,  73  Mo.,  192,  198  (1880);  Atkison  v.  Dixon,  96  Mo., 
588,  589  (1888)  ;  Adams  v.  St.  Louis  &  S.  F.  E'y  Co.,  28  S.  W.,  496,  497 
(Mo.,  1894),  aff'd  in  29  S.  W.,  836  (Mo.,  1895);  Kuhlman  v.  Meier,  7 
Mo.  App.,  260,  263  (1879);  Dryden  v.  Kellogg,  2  Mo.  App.,  87,  92 
(1876);  John  O'Brien  Boiler  Co.  v.  Haydock,  59  Mo.  App.,  653,  660 
(1894)  ;  Mayo  v.  Newhoff,  47  N.  J.  Eq.,  31,  35  (1890) ;  Be  Welch,  108 
Fed.,  367  (U.  S.  Dist.  Ct.,  N.  Y.,  1901)  ;  Be  City  of  Buffalo,  1  N..Y.  St. 
Eep.,  742,  746  (1886);  Kribbs  v.  Alford,  120  N.  Y.,  519,  523  (1890); 
John  T.  Dyer  Company's  App.,  21  Pa.  Co.,  442  (1898);  Stark  v.  Hight, 
3  Pa.  Super.,  516,  520  (1897)  ;  Advance  Coal  Co.  v.  Miller,  4  Pa.  Dist., 
352,  356  (1895);  Sattler  v.  Opperman,  30  Pitts.  Leg.  J.,  205  (1900); 
Wick  V.  Bredin,  189  Pa.  St.,  83,  93  (1899)  ;  Hope  Ins.  Co.  v.  Brolaskey, 
35  Pa.  St.,  282,  283  (1860);  East  Tenn.,  V.  &  G.  E'y  Co.  v.  Morristown, 
35  S.  W.,  771  (Tenn.  Ch.,  1895)  ;  Weltman  v.  August,  11  Tex.  Civ.  App., 
604,  605  (1895);  Keefe  v.  Furlong,  96  Wis.,  219,  222  (1897);  Oswald 
V.  Whitman,  22  Xova  S.,  13,  16  (1889)  ;  see,  also,  Cheatham  v.  Plinke,  1 
Tenn.  Ch.,  576,  580  (1874)  ;  Hertzberg  v.  Witte,  22  Tex.  Civ.  App.,  320, 
322  (1899).  For  the  same  rule  as  between  parties  not  tenants,  see,  ante, 
p.    *66.] 

[A  landlord  dispossessed  a  tenant  wrongfully,  and  leased  the  land  to 
another  who  erected  fixtures  having,  under  his  lease,  the  right  to  remove 
them.  The  first  tenant  recovered  possession  of  the  land  and  of  the  fix- 
tures. Upon  surrender  of  possession  by  the  first  tenant,  held,  that  the 
landlord  was  estopped  from  denying  the  right  of  the  second  tenant  to 
remove  his  fixtures.     Wright  v.  Macdonell,  88  Tex.,  140,  149   (1895).] 

[Where  buildings  are  erected  by  a  tenant  with  the  permission  of  the 
landlord,  a  right  to  remove  same  will  be  implied.  Gordon  v.  Miller,  28 
Ind.  App.,  612,  619  (1901);  McDonald  v.  Shepard,  25  Kan.,  112,  115 
(1881);  and  there  is  sufficient  consideration  for  the  landlord's  promise 
to  pay  therefor.  Duff  v.  Snider,  54  Miss.,  245,  253  (1876).  But  where, 
under  an  agreement  that  the  tenant  is  to  pay  the  cost,  but  with  no  agree- 
ment for  removal,  the  landlord  builds  a  studio  permanently  affixed  to  a 
brick  building,  the  tenant  has  no  interest  therein  beyond  his  right  to  the 
use  of  it  during  his  term.  Butler  v.  Colwell,  89  111.  App.,  133,  137  (1900)  ; 
and  the  fact  that  a  lessee  is  given  permission  to  substitute  one  building 
for  another  is  not,  in  itself,  equivalent  to  permission  to  remove  the  sub- 
stituted building.  Holmes  v.  Standard  Pub.  Co.,  55  Atl.,  1107,  1108  (N.  J. 
Ch.,    1903).] 

[Buildings  which  a  tenant  has  the  right  to  remove  are  personal  prop- 
erty, and  an  action  for  the  recovery  of  damages  for  their  destruction  in 
another  state,  is  transitory.  Laird  v.  Eailroad,  62  N.  H.,  254,  261 
(1882).] 

[Where  the  buyer  of  ice-houses  takes  a  lease  of  the  land  upon  which 
they  stand,  which  lease  expressly  provides  that  he  may  remove  tlicm,  they 
are  personal  property,  and  he  can  not,  by  insisting  that  they  are  realty, 

217 


*150  THE  LAW  OF  FIXTURES.  [CIIAP.   IV, 

also  well  settled  that  agreements  between  the  landlord  and  ten- 
ant, authorizinc:  the  latter  or  his  nnder-tenant  to  remove  fix- 
tures annexed  by  them,  at  or  before  the  expiration  of  the  term, 

seek  to  recover  the  value  of  the  consideration.  Handforth  v.  Jackson,  150 
Mass.,   149    (1SS9).] 

[See  Kay  v.  Hathaway,  21  Tex.  Civ.  App.,  466  (1899),  as  to  the  right 
to  remove  a  house  upon  the  performance  of  a  condition.] 

A  tenant  making  improvements  during  his  term,  which  by  agreement  he 
has  the  right  to  remove,  may  at  least  make  such  removal  after  the  expira- 
tion of  his  term  while  he  holds  over  and  still  remains  in  possession  of  the 
premises.  Dubois  v.  Kelly,  10  Barb.,  509  (1851).  And  as  such  annexations 
are  personal  property,  it  seems  that  they  are  not  lost  by  leaving  them  on 
the  premises  after  quitting  possession.     See  ante,  p.  *148. 

[When  the  lease  expires,  the  owner's  consent  continues  for  a  reasonable 
time,  unless  he  withdraws  it  and  demands  the  removal  of  the  buildings. 
If,  after  such  demand,  the  owner  of  the  buildings  fails  to  remove  them 
•n-ithin  a  reasonable  time,  he  will  be  presumed  to  have  abandoned  them  to 
the  owner  of  the  land.  What  is  a  reasonable  time  should  be  determined 
from  all  the  facts  and  circumstances.  If  the  claim  was  not  made  within 
a  reasonable  time,  that  fact  might  be  considered  by  the  jury  as  evidence 
tending  to  prove  an  abandonment.  Kuhlmann  v.  Meier,  7  Mo.  App.,  260, 
264    (1879).] 

See,  however,  Burk  v.  Hollis,  98  Mass.,  55  (1867),  which  seems  to  favor  a 
contrary  opinion,  though  the  case  is  not  clear  upon  the  point;  also,  Overton 
V.  Williston,  31  Penn.  St.,  155  (1858),  where  a  party  covenanted  to  erect  a 
steam  saw-mill  on  the  land  of  another,  to  furnish  all  the  machinery  there- 
for, and  to  manufacture  lumber  therewith  out  of  logs  to  be  furnished  by 
the  owner  of  the  land  for  a  period  of  five  years  for  a  fixed  price,  at  the 
end  of  which  time  the  mill  and  buildings  were  to  belong  to  the  owner  of 
the  land,  and  the  machinery  to  the  party  erecting  the  mill,  and  it  was  held, 
that  considering  the  agreement  in  the  most  favorable  light,  it  placed  such 
party  in  no  better  position  than  a  lessee,  and  that  his  right  to  remove  the 
machinery  could  not  be  exercised  after  the  expiration  of  the  time  men- 
tioned in  the  contract.  See,  also,  Sumner  v.  Bromilow,  11  Jur.  (N.  S.), 
481  (1865);  s.  c,  34  L.  J.  (N.  S.),  Q.  B.,  130;  Stansfield  v.  Mayor  of 
Portsmouth,  4  C.  B.  (N.  S.),  120  (1858);  s.  c,  4  Jur.  (N.  S.),  440;  27 
L.  J.  (X.  S.),  C.  P.,  124;  aiite,  Chap.  3.  [Childs  v.  Hurd,  32  W.  Va.,  66, 
103    (1889).] 

[A  provision  that  buildings,  etc.,  shall  not  become  part  of  the  realty 
can  have  no  more  effect  than  making  them  trade  fixtures;  and  where  such 
provision  requires  their  removal  by  the  end  of  the  term,  and  another  pro- 
vision requires  delivery  of  the  premises  immediately  upon  the  termination 
of  the  term,  the  right  of  removal  is  lost  by  not  removing  them  during  the 
term,  although  the  lessee  remains  in  possession.  Dreiske  v.  People's  Lum- 
ber Co.,  107  111.  App.,  285   (1903).] 

218 


CHAP.   IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL.  *151 

are  not  within  the  Statute  of  Frauds,  and  may  be  by  parol. ^ 
*The  last  proposition  is  of  course  subject  to  the  qualifica-  [*151] 
tion  that  is  imposed  by  the  rule  that  "parol  contemporaneous 
evidence  is  inadmissible,  to  contradict  or  vary  the  terms  of  a 
valid  written  instrument. ' '  ^  But  where  a  lease  contained  the 
provision  that  materials  contained  in  an  old  building  on  the 
premises  might  be  used  by  the  lessee  in  the  construction  of  a 
new  house  to  be  erected  by  him,  but  was  silent  as  to  the  right 
of  removal  or  compensation,  and  did  not  fully  recite  the  agree- 
ment in  reference  to  such  buildings,  it  was  held  that  it  might 

1  Dubois  V.  Kelly,  10  Barb.,  507  (1851)  ;  Powell  v.  McAshan,  28  Mo.,  70 
(1859).  [Broaddus  v.  Smith,  121  Ala.,  335  (1898);  Eoyce  v.  Latshaw,  15 
Colo.  App.,  420,  424  (1900)  ;  Eyder  v.  Faxon,  171  Mass.,  206,  207  (1898)  ; 
Neiswanger  v.  Squier,  73  Mo.,  192,  198  (1880);  Torrey  v.  Burnett,  38  N. 
J.  Law,  457,  461  (1875);  Cowell  v.  Phoenix  Ins.  Co.,  126  N.  C,  684 
(1900);  see,  also,  ante,  p.  *139.] 

[A  subsequent  oral  agreement  between  a  tenant  and  his  sub-tenant 
that  the  latter  may  replace  trade  fixtures  belonging  to  the  former,  such 
fixtures  to  belong  to  the  tenant,  is  valid.  Podlech  v.  Phelan,  13  Utah,  333, 
336    (1896).] 

A  parol  promise  to  pay  for  improvements  made  upon  land  is  not  within 
the  Statute  of  Frauds,  they  not  being  an  interest  in  land,  but  only  another 
name  for  work  and  labor  bestowed  upon  it.  Lower  v.  Winters,  7  Cow.,  263 
(1827);  Sutton  v.  Seqrs,  10  Ind.,  223  (1858);  Frear  v.  Hardenberg,  5 
John.,  272  (1810).  See,  also,  Kelly  v.  Webster,  12  C.  B.,  283  (1852);  s. 
c,  16  Jur.,  838;  21  L.  J.  (N.  S.),  C.  P.,  163;  and  post,  p.  *343,  under  the 
head  of  Statute  of  Frauds,  where  the  subject  is  more  fully  considered. 
[South  Baltimore  Co.  v.  Muhlbach,  69  Md.,  395,  404   (1888).] 

2  1  Greenl.  Ev.,  §  275.  This  subject  was  considered  in  Jungerman  v. 
Bovee,  19  Cal.,  354  (1861).  In  this  case  F,  leased  a  lot  sixty  feet  front  to 
B.  &  M.,  the  lease  containing  a  covenant  that  at  the  end  of  the  term  the 
lessees  would  peaceably,  etc.,  surrender  and  yield  up  all  the  demised  prem- 
ises, but  no  covenant  for  quiet  enjoyment;  there  was  also  a  contempo- 
raneous parol  understanding  that  the  lessees  might  remove  the  buildings  to 
be  erected  by  them  on  the  premises.  Subsequently,  and  before  the  expira- 
tion of  the  original  lease,  on  F. 's  selling  his  interest  in  the  premises  to 
two  separate  purchasers  in  parcels  of  thirty  feet  front  each,  in  order  to 
apportion  the  rent  the  old  lease  was  cancelled  and  two  new  leases  exe- 
cuted by  F.  to  B.  &  M.  of  the  respective  portions  of  tlie  demised  premises, 
which  contained  a  covenant  for  the  surrender  of  all  and  singular  the  said 
demised  premises,  and  also  a  covenant  for  quiet  enjoyment.  At  the  time 
of  the  execution  of  the  second  leases  the  buihlings  in  question  had  been 
erected  and  were  standing  upon  the  demised  land.  These  leases  F,  assigned 
to   the   respective   purchasers.     Contemporaneously   with   the   execution   of 

219 


*152  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

f*152]  *be  shown  by  parol  that  the  lessee  was  to  be  paid  for  the 
building  or  else  permitted  to  remove  it ;  and  that  this  agreement 
being  established,  the  tenant  should  not  be  restrained  from  re- 
moving it  in  the  absence  of  any  offer  by  the  lessor  to  reim- 
burse him  for  his  outlay.^     As  between  landlord  and  tenant 

such  second  leases  there  Tras  had  the  same  understanding  between  F,  and 
M.  &  B.  as  to  the  right  to  remove  the  buildings  ut  the  end  of  the  term. 
Held,  that  by  taking  the  second  leases  the  first  was  surrendered  and  abro- 
gated; that  evidence  of  the  contemporaneous  agreement  as  to  the  removal 
of  the  buildings  not  showing  an  independent  agreement  or  license  to  re- 
move them,  but  simply  the  lessor's  construction  or  understanding  of  the 
lease,  was  inadmissible  to  contradict  and  vary  the  terms  of  the  lease.  And 
it  seems  that  such  a  right  or  privilege  contemporaneously  given  by  an  oral 
agreement  directly  contradicting  the  effect  of  the  writing,  could  not  be 
set  up  against  the  writing,  even  if  it  were  by  an  independent  agreement 
or  a  license. 

It  was  also  decided  in  West  v.  Blakeway,  2  M.  &  G.,  729  (1841);  s.  C, 
3  Scott,  N.  K.,  199;  9  Dowl.  P.  C,  846;  5  Jur.,  630,  in  accordance  with  the 
rule  that  a  contract  under  seal  cannot  be  varied  by  parol,  that  a  plea  to 
a  breach  of  a  covenant  to  yield  up  at  the  expiration  of  the  term  all  erec- 
tions and  improvements,  that  it  was  agreed  between  lessor  and  lessee  that 
if  the  latter  should  erect  a  greenhouse  he  might  remove  it  at  the  end  of  his 
term,  was  bad. 

[See  Kenney  v.  Matlack,  12  Atl.,  589   (Pa.,  1888).] 

[Where  a  person,  who  was  offered  the  assignment  of  a  lease  and  the  sale 
of  certain  fixtures,  informed  the  landlord  that  he  was  willing  to  purchase 
if  he  could  remove  the  fixtures,  and  the  landlord  agreed  that  if  he  pur- 
chased he  could  remove  them,  the  tenant  can  show  this  oral  agreement, 
and  has  the  right  of  removal,  although  the  written  lease  provided  that 
improvements  made  by  the  tenant  should  be  surrendered  by  him  at  the 
end  of  the  term.     Whitney  v.  Shippen,  89  Pa.  St.,  22   (1879).] 

["Where  proof  of  such  oral  agreement  is  not  objected  to  at  the  trial, 
the  tenant  establishes  a  right  to  remove  fixtures.  Stephens  v.  Ely,  14  App. 
Div.,  202    (N.  Y,,  1897).] 

[The  right  to  remove  improvements  was,  by  mistake  of  the  lessor, 
omitted  from  the  lease,  and  the  lessee  refused  to  sign  unless  such  privi- 
lege was  inserted.  The  lessor  then  said  that  the  omission  should  not  inter- 
fere with  the  lessee's  right  of  removal,  whereupon  the  lease  was  signed. 
Held,  that  these  facts  could  be  shown  by  parol,  as  an  attempt  to  prevent 
the  removal  of  the  improvements  was  fraudulent,  and  the  lease  was  re- 
formed to  make  it  speak  the  intention  of  the  parties.  Isenhoot  v.  Chamber- 
lain, 59  Cal.,  630,  637   (1881).] 

iGray  v.  Oyler,  2  Bush   (Ky.),  256   (1867). 

[In  a  lease  of  land,  upon  M-hich  were  posts  which  had  served  as  the 
foundation  of  a  former  building,  the  phrase  "to  be  occupied  by  a  build* 

220 


CHAP.   IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOV^Uj.  *152 

also,  the  tenant  may  by  a  verbal  agreement  with  the  landlord 
for  that  purpose  reserve  the  right  of  removing  his  fixtures  after 
the  expiration  of  his  term ;  and  in  such  case  his  right  thereto  as 
against  the  landlord  is  not  lost  by  leaving  them  annexed  to  the 
premises  after  the  end  of  the  term.^  But  as  against  a  subse- 
quent incoming  tenant,  the  case  is  different.  In  such  a  case  the 
license  of  the  landlord  to  enter  and  remove  the  fixtures  having 
a  prospective  operation,  is  said  to  be  something  like  a  grant  of 
an  interest  in  the  land,  or  at  all  events  to  be  a  grant  of  authority 
to  enter  and  remove  something  at  a  future  time,^  which  though 
it  might  be  valid  if  executed,  or  might  perhaps  furnish  a  ground 
of  action  by  the  tenant  against  his  landlord  for  not  making 
such  a  bargain  with  the  incoming  tenant  as  would  enable  the 
outgoing  tenant  to  enter  and  take  the  fixtures,  yet,  as  against 
such  incoming  tenant  not  being  a  privy  thereto,  it  will  not  be 
binding  unless  it  is  so  executed  as  to  bind  the  land,  and  where 
an  incorporeal  inheritance  affecting  land  cannot  be  created  or 


ing  erected  thereon  by  said"  lessee,  and  a  covenant  that  at  the  termina- 
tion of  the  lease  the  lessee  should  deliver  up  the  premises  in  as  good  order 
and  condition  as  they  were  or  should  be  put  into  by  the  lessee,  are  not 
inconsistent  with  a  verbal  agreement  that  the  building  should  be  the  per- 
sonal property  of  the  lessee.  Kyder  v.  Faxon,  171  Mass.,  206,  207  (1898).] 
[A  lessee  agreed  that  "all  machinery  and  fixtures  put  on  property  by 
lessee  to  remain  thereon  at  the  expiration  of  the  lease."  The  code  con- 
ferred the  right  on'  the  lessee  to  remove  improvements.  The  court  held 
that  this  clause  in  the  lease  did  not  mean  that  the  lessee  was  to  receive 
no  compensation.  He  waived  his  right  of  statutory  removal,  but  retained 
ownership.  Otherwise,  a  stipulation  to  the  contrary  would  have  been 
added.  The  value  of  the  improvements  was  nearly  one-half  that  of  the 
plantation,  and  the  rental,  aside  from  the  improvements,  was  adequate. 
Ross  V.  Zuntz,  36  La.  Ann.,  888    (1884).] 

2  See  McCracken  v.  TTall,  7  Ind.,  30  (ISS.'j)  ;  also.  Gray  v.  Oyler,  2  Bush, 
(Ky.),  256  (1867).  [Sec  Commissioners  of  Pitkin  County  v.  Brown,  2 
Colo,  App.,  473,  475  (1892);  Forbes  v.  Mosquito  Club,  175  Mass.,  432 
(1900);  Lewis  v.  Ocean  Pier  Co.,  125  N.  Y.,  341,  349  (1891),  aff'g  3 
N.  Y.  Supp.,  911,  912  (1889);  Thorn  v.  Sutherland,  123  N.  Y.,  236 
(1890).] 

3  A  license  while  executory  is  revocable;  but  a  conveyance  by  the  owner 
after  a  license  granted,  the  lessee  being  in  possession  at  the  time  of  such 
conveyance  and  not  chargeable  with  notice  of  it,  is  not  a  revocation.  Du- 
bois v.  Kelly,  10  Barb.,  496  (1851). 

221 


•152  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

transferred  otherwise  than  by  deed,  such  license  to  be  effectual 
as  against  such  incoming  tenant  must  be  by  deed.^ 

4  This  point  is  well  illustrated  in  Eoffey  (or  Euffey)  v.  Henderson,  17 
Q.  B.,  574  (1851);  s.  c,  16  Jur.,  84;  121  L.  J.  (N.  S.),  Q.  B.,  49.  In  this 
case  the  plaintiff,  a  tenant  of  a  house  for  a  term  of  years,  being  possessed 
of  tenant's  fixtures  for  domestic  use,  annexed  to  the  freehold,  but  remov- 
able by  him  as  against  the  landlord  during  the  term,  requested  the  land- 
lord to  purchase  them  at  the  end  of  the  term  or  to  allow  them  to  remain 
subject  to  a  future  tenant 's  taking  them  when  the  house  was  let,  or  if  he 
should  refuse  to  take  them  to  be  then  removed.  The  landlord  wrote  in 
reply  declining  to  purchase,  but  stating  that  he  had  no  objection  to  the 
tenant 's  leaving  them  on  the  premises,  and  making  the  best  terms  he 
could  with  the  incoming  tenant.  The  articles  remained  unremoved  till 
and  after  the  entry  of  the  new  tenant  under  the  landlord,  who  declined 
to  purchase.  Plaintiff  then,  after  tenant  had  been  two  months  in  possession, 
demanded  the  fixtures  and  access  for  the  purpose  of  removing  them,  which 
were  refused,  and  the  plaintiff  brought  case  against  the  tenant  for  the 
hindrance,  with  a  count  in  trover  for  the  articles.  Held,  that  the  land- 
lord's letter  of  license  to  plaintiff  having  a  prospective  operation,  and  not 
being  by  deed,  was  no  valid  grant  of  a  privilege  to  remove  the  articles 
as  against  the  new  tenant  in  possession,  to  whom  the  landlord  had 
demised  the  land  without  reservation  and  who  was  not  a  party  to  the 
license. 

See,  as  to  the  necessity  of  a  deed  in  order  to  the  grant  of  a  valid  pro- 
spective license.  Wood  v.  Leadbitter,  13  M.  &  W.,  838  (1845),  holding  that 
a  right  to  come  and  remain  for  a  certain  time  upon  the  land  of  another 
can  be  granted  only  by  deed.  See,  also,  Wallis  v.  Harrison,  4  M.  &  W.,  538 
(1838). 

In  Eoffey  v.  Henderson  (supra),  the  question  as  to  the  fixtures  being  a 
gift  to  the  landlord  was  not  raised,  the  question  being  solely  between 
the  outgoing  and  incoming  tenants,  and  it  was  stated  by  Coleridge,  J.,  that 
the  plaintiff,  the  outgoing  tenant,  might  have  a  cause  of  action  against  the 
landlord  for  the  breach  of  his  engagement  though  not  against  the  incoming 
tenant  to  whom  the  landlord  in  the  exercise  of  his  right  had  demised. 

[Where  the  lessee  covenants  to  erect  improvements  which  he  is  given 
the  right  to  remove,  but  is  evicted  by  a  paramount  title,  he  can  not  re- 
cover their  value  from  the  lessor.  Lanigan  v.  Kille,  97  Pa.  St.,  120,  127 
(1881).] 

The  question  as  to  what  amounts  to  a  license  was  also  considered  in 
Sparks  v.  Leavy,  19  Abb.  Pr.,  364  (1863),  s.  c,  1  Eobt.,  530.  In  this  case 
the  owner  of  real  estate  being  applied  to  by  one  who  had  furnished  certain 
fixtures  (marble  mantels)  which  he  had  not  been  paid  for,  for  leave  to 
enter  and  remove  them,  gave  him  to  understand  that  he  had  no  objection 
to  the  removal  so  far  as  he  was  concerned,  but  could  not  give  his  express 
consent   for   fear   of   trouble  with  the  mortgagees.     Held,   that  this  waa 

222 


CB.AP.  IV.]  SPECL\L  AGREEMENTS  AS  TO  REMOVAL.  *153 

•Agreements  modifying  the  right  of  removing  fixtures  [*153] 
may  be  contained  either  in  the  original  contract  of  letting  the 
premises  or  some  contemporaneous  agreement,  or  they  may  be 
entered  into  subsequently  to  the  original  demise.  Such  agree- 
ments may  enlarge  and  extend  what  would  otherwise  be  the 
rights  of  the  tenant,  either  as  respects  the  time  within  which 
the  right  should  be  exercised,^    or  the  articles  which  are  the 

not  a  license  to  remove  them,  and  that  he  was  not  thereby  estopped  from 
suing  him  for  their  removal. 

[An  agreement  between  landlord  and  tenant  that  the  latter  may  remove 
fixtures  after  quitting  possession,  is  inoperative  against  mortgagees  who 
have  taken  possession.     Thomas  v.  Jennings  (1896),  66  L.  J.,  Q.  B.,  5.] 

[Although  a  tenant  has  the  right  to  remove  a  brick  building  erected  by 
him,  it  is,  as  between  him  and  an  insurer,  real  property.  Orient  Ins.  Co. 
V.   ParUn-Orendorff   Co.,    14   Texas   Civ.   App.,   512    (1896).] 

[Any  agreement  between  a  landlord  and  a  sub-tenant  in  regard  to  the 
trade  fixtures  of  the  tenant,  which  is  not  assented  to  by  the  tenant,  can  not 
affect  the  tenant's  rights.     Podlech  v.  Phelan,  13  Utah,  333,  339   (1896).] 

[Where  a  tenant  has  the  right  to  remove  a  building  erected  by  him, 
and  a  mechanic 's  lien  thereon  is  foreclosed  without  making  him  a  party, 
his  rights  are  not  affected.  Cuppy  v.  O 'Shaughnessy,  78  Ind.,  245, 
250    (1881).] 

[For  cases  bearing  upon  the  text,  see  Stewart  v.  Munford,  91  111.,  58 
(1878);    Trask  v.   Little,   182  Mass.,   8    (1902).] 

1  See  McCracken  v.  Hall,  7  Ind.,  30  (1855)  ;  Higgins  v.  Eiddell,  12  Wis., 
587  (1860);  and  Gray  v.  Oyler,  2  Bush.  (Ky.),  256  (1867).  [Carper  v. 
Kisdon,  76  Pac.,  744  (Colo.  App.,  1904);  O'Brien  v.  Mueller,  96  Md., 
134,  137  (1902);  Exchange  Bldg.  Co.  v.  Schuchman  Realty  Co.,  103  Mo. 
App.,  24  (1903);  Neiswanger  v.  Squier,  73  Mo.,  192,  198  (1880);  Duffus 
V.  Bangs,  122  N.  Y.,  423,  427  (1890);  Advance  Coal  Co.  v.  Miller,  4  Pa. 
Dist.,  352,  355  (1895);  Bermea  Lumber  Co.  v.  Adoue,  20  Texas  Civ.  App., 
655,  661  (1899);  Fitzgerald  v.  Anderson,  81  Wis.,  341,  343  (1892);  Busby 
V.  Joseph,  7  N.  S.  W.,  Supr.  Ct.,  200  (1868);  see,  also.  Commissioners  of 
Pitkin  County  v.  Brown,  2  Colo.  App.,  473,  475  (1892)  ;  Lewis  v.  Ocean 
Pier  Co.,  125  N.  Y.,  341,  349  (1891),  aff'g  3  N.  Y.  Supp.,  911,  912 
(1889)  ;  Waterman  v.  Clark,  58  Vt.,  601  (1886)  ;  Ferguson  v.  Paul  (1885), 
22  Scot.  Law  Eep.,  809.] 

[Before  a  tenant  yielded  up  possession,  his  landlord  agreed  to  make 
an  endeavor  to  sell  his  fixtures  for  him  to  a  person  who  was  negotiating 
for  the  land.  Ifrld,  that  the  fixtures  did  not  bocnmo  the  property  of  the 
landlord,  as  the  theory  of  abandonment  would  be  unreasonable.  For 
the  landlord  to  claim  the  chattels  as  fixtures  under  such  circumstances, 
because  the  tenant  failed  to  remove  them  while  in  possession,  would 
be  a  sheer  fraud.  Torrey  v.  Burnett,  38  N.  J.  Law,  457,  450  (1875). 
And  an   agreement   to   pay   for   the   use   of   fixtures  is   inconsistent   with 

223 


•153  THE  LAW  OF  FIXTURES.  [clIAr.   IV. 

subjects  of  its  exercise;  or  they  may  restrict  or  entirely  divest 
the  tenant  of  such  rights.- 

any  ownership  therein.     Charlotte  Furnace  Co.   v.   Stouffer,   127   Pa.   St., 
336    (1SS9).J 

[Where  there  was  a  provision  in  a  lease  for  the  removal  of  fixtures 
by  the  tenant,  it  was  held  that  it  should  not  be  construed  to  give  the 
tenant  only  such  rights  as  the  law  would  have  implied  in  the  absence 
of  any  agreement,  unless  it  clearly  appears  that  such  was  the  intention, 
but  was  construed  as  intending  to  give  the  tenant  the  right  to  remove  the 
fixtures  within  a  reasonable  time  after  the  lease  had  ended,  they  being 
of  such  a  nature  that  they  could  not  well  be  removed  upon  the  very  day 
of  the  termination  of  the  lease.  Wright  v.  Macdonnell,  88  Tex.,  140, 
146    (1895).] 

[Where  the  lessor  waits  six  years  after  the  termination  of  the  lease 
before  bringing  an  action  of  ejectment,  the  lessee  will  be  given  time  to 
remove  his  improvements  as  provided  in  the  lease.  Maxwell  Land  Co. 
V.  Santistevan,  7  N.  Mex.,  1,  4   (1893).] 

[Where  a  lease  gives  a  tenant  the  right  to  remove  buildings  "at  the 
end  of  the  term"  he  has  a  right  to  remove  them  within  a  reasonable 
time  after  the  expiration  of  the  term.  Davidson  v.  Crump  Mfg.  Co.,  99 
Mich.,  501  (1894);  East  Sugar-Leaf  Co.  v.  Wilbur,  5  Pa.  Dist.,  202 
(1895);  Gray  v.  McLennan,  3  Man.,  337,  346  (1886);  but  he  must  sur- 
render possession  of  the  lot,  subject  to  his  right  of  ingress  and  egress. 
Caperton  v,  Stege,  91  Ky.,  351  (1891).  An  unnecessary  delay  of  more 
than  one  month  was  held  unreasonable  in  Smith  v.  Park,  31  Minn.,  70 
(1883).  Where  the  provision  is  that  the  tenant  may  remove  fixtures  "at 
any  time, ' '  the  tenant  must  remove  them  within  a  reasonable  time,  and 
by  a  delay  of  four  years  after  the  expiration  of  the  lease,  such  fixtures 
become  the  property  of  the  land-owner.  Shellar  v.  Shivers,  171  Pa.  St., 
569    (1895).] 

[A  privilege  "of  removing  any  building  erected  on  said  lands"  applies 
to  both  buildings  in  existence  when  the  lease  is  executed  and  to  additions 
afterwards  made.     Gray  v.  McLennan,   3   Man.,   337,   346    (1886).] 

2  See  Thrall  v.  Hill,  110  Mass.,  328  (1872),  holding  that  where  a  lessee 
puts  furniture  and  fixtures  into  the  demised  premises  under  an  agreement 
with  the  lessor  that  they  are  to  become  the  property  of  the  lessor  at  the 
end  of  the  term,  the  lessor  has  an  interest  in  such  fixtures,  etc.,  that  will 
pass  by  his  bill  of  sale  to  a  third  person  during  the  term,  who  may 
maintain  trover  for  their  conversion  after  the  expiration  of  the  term. 

[Where  a  lessee  covenants  to  deliver  all  buildings  erected  by  him,  the 
lessor  takes  a  present  estate  in  such  buildings  subject  to  user  by  the 
lessee  during  the  term ;  and,  in  condemnation  proceedings,  the  lessee  is  not 
entitled  to  the  value  of  the  buildings.  Corrigan  v.  Chicago,  144  111.,  537, 
550    (1893).] 

[In  Dunn  v.  Garrett,  7  N.  Brunsw.,  218,  222  (1851),  it  was  held  that 
where  a  tenant,  under  an  agreement  to  leave  "gas  fittings  and  fixtures, 

224 


J » 


CH.VP.   IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL,  *15J: 

*With  respect  to  agreements  relating  to  the  time  of  re-  [*154] 
moval,  where  the  landlord  agrees  to  allow  his  tenant  a  reason- 
able time  after  the  expiration  of  his  lease  in  which  to  remove 
fixtures,  the  intention  of  the  parties  relates  and  if  confined  to  the 
legal  expiration  thereof  by  its  own  limitation,  and  not  by  the 
wrongful  act  of  the  lessees  terminating  the  same  ;^  and  in  such 

put  up  gas  fittings  which  at  common  law  he  had  a  right  to  remove,  no 
property  therein  vested  in  the  landlord  unless  the  gas  fittings  were  left 
after  the  tenant  had  quitted  possession,  as  the  agreement  mentioned  them 
as  something  distinct  from  fixtures.  The  landlord  had  a  right  of  action 
for  the  nonperformance   of   the  agreement,   but   nothing   more.] 

[Where  a  statute  provides  that  trade  fixtures  shall  be  personal  property, 
it  has  no  application  where  the  lease  expressly  provides  that  improve- 
ments shall  become  the  property  of  the  landlord.  Center  v.  Everard,  43 
N.  Y.  Supp.,  416,  417   (1897).] 

[For  additional  cases  where  the  tenant 's  right  of  removal  was  restricted, 
see  Harris  v.  Kelly,  13  Atl.,  523,  527  (Pa.,  1888);  Miller  v.  Gray,  29 
Texas  Civ.  App.,  183  (1902)  ;  Be  Duperrouzel,  9  Leg.  News,  380  (Super., 
Montreal,  1886);  see,  also.  Hay  v.  Tillyer,  14  Atl.,  18,  19  (N.  J,  Ch., 
(1886);  Official  Assignee  v.  Maxwell,  11  N.  Z.,  312  (1892);  and,  post, 
pp.   *160  and  *166.] 

[Buildings  erected  by  a  tenant  pursuant  to  a  covenant  in  the  lease, 
are  not  removable  by  him  unless  the  lease  gives  that  right,  for  he  could 
have  erected  them  without  any  such  stipulation.  His  agreement  to  erect 
them  is  as  much  a  part  of  the  consideration  for  the  rights  he  acquired 
under  the  lease  as  was  his  promise  to  pay  rent.  To  hold  that  they 
were  not  to  be  returned  to  the  lessor  along  with  the  premises  would  prac- 
tically annul  the  provision  requiring  their  erection.  Tunis  Lumber  Co.  v, 
Denis  Lumber  Co.,  97  Va.,  682,  686   (1899).] 

[A  lessee  of  a  mine  leased  an  engine  and  a  boiler  to  be  used  in  work- 
ing the  mine.  The  contract  between  the  mine-owner  and  the  lessee  provided 
that  all  machinery  used  in  the  mine  should  become  the  property  of  tlie 
mine-owner.  The  lessor  of  tlio  engine  knew  that  it  was  to  be  used  in  a 
mine,  but  did  not  know  of  the  agreement  with  the  mine-owner.  The 
engine  and  boiler  were  affixed  to  the  mill  by  means  of  iron  bolts,  timbers 
and  masonry  in  such  a  manner  that  they  could  not  bo  removed  without 
destroying  the  masonry  and  stone  wall,  and  greatly  damaging  some  of  the 
timbers  of  the  mill,  which  was  permanently  attached  to  the  mine.  Held, 
that,  as  between  the  lessor  of  the  engine  and  the  lessee,  the  engine  and 
boiler  remained  personal  property,  and  the  mine-owner  stood  in  the  shoes 
of  the  lessee.     Hcndy  v.  Dinkerhnff,   57  Cal.,  3,  5    (1880).] 

1  Whiplcy  v.  Dewey,  8  Cal.,  36  (1857).  [Little  Falls  Water  Power  Co. 
v.  Ilausdorf,  127  Fed.,  442,  444  (U.  S.  C.  C,  Minn.,  1904).  But  see 
Mickle  v.  Douglas,  75  Iowa,  78  (1888),  which  holds  that  where  the  lease 
expressly  gives  the  right  of  removal,  such  right  is  not  aflfected  by  a  for- 

15  225 


*154:  THE  L^VW  OF  FIXTURES.  [CIIAP.  IV. 

a  case  there  is  no  moral  oblijxation  on  the  part  of  the  landlord 
sufficient  as  a  consideration  to  support  a  subsequent  promise  of 
the  landlord  to  pay  therefor.-  It  is  to  be  observed,  however, 
that  ■svhere  the  interest  of  the  landlord  is  less  than  a  fee,  as  an 
estate  for  life,  he  cannot  by  contract  with  his  tenant  confer 
rights  as  against  the  remainderman  or  reversioner  to  be  exer- 
cised after  the  termination  of  his,  the  landlord's^  estate.  The 
remainderman  or  reversioner  in  such  a  case  is  not  bound  by 
any  agreement  between  the  tenant  for  life  and  his  lessee,  under 
which  such  lessee  may  have  placed  erections  upon  the  land. 

feiture.]  So,  where  a  lease  contained  a  covenant  that  at  the  expiration  of 
ten  years  it  should  be  at  the  election  of  the  landlord  to  purchase  the 
buildings  to  be  erected  thereon  by  the  tenant  at  the  appraised  value  at 
that  time,  or  renew  the  lease  for  ten  years  longer  at  an  appraised  rent, 
etc.,  at  the  expiration  of  each  and  every  ten  years  during  the  term  of 
99  years,  the  landlord  being  bound  either  to  renew  the  lease  or  purchase  the 
buildings  as  aforesaid,  the  landlord  is  not  bound  to  pay  for  such  build- 
ings where  the  lease  has  been  determined  by  forfeiture  and  entry  for  non- 
payment of  rent  before  the  expiration  of  the  limited  time,  even  though 
by  the  terms  of  the  lease  the  landlord  was  to  repossess  and  enjoy  "as  in 
his  first  and  former  estate, ' '  and  though  the  buildings  were  not  on  the  land 
at  the  date  of  the  lease,  such  words  referring  to  the  nature  of  the  interest 
and  not  the  extent  of  improvements  on  the  soil.  Kutter  v.  Smith,  2 
Wall.,  491    (1864). 

[A  disclaimer  of  a  lease  by  the  trustee  under  the  English  Bankruptcy 
Act,  is  a  surrender  of  the  whole  lease  including  a  provision  therein  giving 
the  lessee  the  right  to  remove  buildings  and  machinery  after  ' '  the 
expiration  or  other  sooner  determination  thereof."  Ex  parte  Glegg  (1881), 
19  Ch.  D.,  7,  16,  reversing  15  Co.  Ct.  &  Bankr.  Cas.,  240.] 

[A  covenant  in  a  lease  provided  that  certain  enumerated  articles  should 
be  the  property  of  the  lessee,  and  removable  by  him.  There  was  a  subse- 
quent proviso  that,  upon  determination  of  the  lease,  all  machinery 
and  buildings  erected  by  the  lessee  should  be  his  property,  and  should 
be  removed  by  him  previous  to  the  cesser  of  the  term.  The  term  having 
ceased  by  a  bankruptcy  petition,  it  was  held  that  the  official  receiver  was 
entitled  to  the  fijctures,  although  it  was  not  decided  whether  the  receiver 
himself  was  entitled  to  remove  the  fixtures,  or  whether  he  could  only 
require  the  lessor  to  deliver  them,  compensating  the  lessor  for  his  expense. 
Ex  parte  Gould  (1884),  13  Q.  B.  D.,  454.] 

2Whipley  v.  Dewey   (supra). 

[A  promise  made  to  a  tenant  by  his  landlord,  after  surrender  of  the 
premises,  to  allow  the  former  to  remove  fixtures,  is  without  consideration, 
if  not  made  as  an  inducement  to  the  surrender.  Thorn  v.  Sutherland,  4 
N.  Y.  Supp.,  694,  696    (1889).] 

226 


CHAP.  IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL.  *155 

Accordingly,  where  a  tenant  for  life  demises  land  to  a  tenant 
for  years  who  under  an  agreement  with  his  landlord  that  he 
shall  have  the  privilege  of  selling  or  removing  some  of  them, 
and  that  others  are  to  be  taken  by  the  owner  of  the  land  at  a 
valuation,  or  if  that  cannot  be  agreed  upon,  that  the  tenant  shall 
*have  the  privilege  of  removing  the  materials,  proceeds  [*155] 
to  erect  buildings  thereon,  and  before  the  expiration  of  the  term 
the  tenant  for  life  dies,  such  buildings  still  remaining  on  the 
premises  may  not  be  removed  by  the  tenant  in  accordance  with 
such  agreement.3  Where  a  lease  provides  that  the  tenant  may 
remove  fixtures  at  the  expiration  of  his  term,  such  provision  will 
not  ordinarily  be  construed  to  prohibit  their  being  removed  dur- 
ing the  continuance  thereof.^ 

3  White  V.  Arndt,  1  Whart.,  91  (1836);  Haflick  v.  Stober,  11  Ohio  St., 
482  (1860).  [See,  however,  Chicago  &  Alton  E.  E.  Co.  v.  Goodwin,  111 
111.,   273,    281    (1884).] 

In  such  a  case  the  reception  of  rent  by  the  remainderman  after  the  death 
of  the  tenant  for  life  will  not  ratify  the  agreement  as  to  the  removal 
when  it  is  collateral  to  and  independent  of  the  lease,  and  it  does  not  appear 
that  the  remainderman  was  apprized  thereof.  White  v.  Arndt  (supra). 
See  Oakley  v.  Monck,  L.  E.  1  Exch.,  159  (1866),  cited  post. 

4  Alexander  v.  Touhy,  13  Kan.,  64  (1874).  [Gray  v.  McLennan,  3  Man., 
337  (1886);  Busby  v.  Joseph,  7  N.  S.  W.  Supr.  Ct.,  200  (1868);  see,  also, 
Advance  Coal  Co.  v.  Miller,  4  Pa.  Dist.,  352,  355  (1895)  ;  Davy  v.  Lewis, 
18  Up.  Can.  Q.  B.,  21.]  But  where  it  was  agreed  that  the  plaintiff  should 
b<?  at  liberty  to  remove  the  improvements  made  upon  the  land,  provided 
the  rents  were  paid  which  might  be  due  on  the  lease  at  its  expiration, 
tht!  provision  that  the  rents  should  be  paid  and  the  terra  expired  were 
held  conditions  precedent  to  the  right  of  removal.  Mathinet  v.  Giddings, 
10  Ohio,  364   (1841). 

Where  a  deed  conveying  land  to  a  county  upon  a  conditional  limitation 
contained  a  covenant  by  the  grantor  that  "should  said  building  cease  to  bo 
occupied  as  a  court  house,  the  said  county  may  remove  the  same  from  the 
premises  without  let  or  hindrance;"  upon  the  termination  of  the  estate  by 
a  breach  of  the  condition,  the  county  was  deemed  entitled  to  a  reasonable 
time  thereafter  to  remove  the  building,  but  it  was  held,  that  the  right  to 
remove  the  building  as  a  chattel  did  not  require  the  tenants  to  retain  the 
seizin  or  possession  of  the  land,  and  that  in  a  writ  of  entry  it  (this 
right)  was  no  objection  to  a  general  judgment  for  the  demandant,  and  a 
motion  for  a  qualified  judgment  reserving  to  the  defendants  time  to 
remove  the  building  was  denied.  Wood  v.  County  of  Cheshire,  32  N.  11., 
421    (1855). 

[For  the  purpose  of  sale  of  fixtures  by  a  tenant  it  is  immaterial  that 
his  right  of  removal  at  the  end  was  conditioned  upon  a  fulfilhncnt  of  the 

227 


♦155  THE  LAW  OF  FIXTURES,  [CHAP.   IV. 

In  order  to  entitle  the  lessee  to  the  exercise  of  the  right  of 
removal  secured  to  him  by  contract,  he  must,  of  course,  have 
performed  and  kept  all  the  covenants  and  conditions  on  his 
part  to  be  performed  and  kept  as  conditions  precedent  to  the 
exercise  thereof,  or  must  show  his  readiness  to  perform  with 
the  particular  circumstances  constituting  a  legal  excuse  of  per- 
formance.^ 

stipulations  in  the  lease.  There  resulted  no  authority  to  assume  that  the 
condition  ^vould  be  broken.    Dryden  v.  Kellogg,  2  Mo.  App.,  87,  92  (1876).] 

[Where  the  landlord  has  the  option,  at  the  expiration  of  the  term,  of 
requiring  the  tenant  to  replace  a  division  wall  or  of  taking  the  tenant's 
fixtures,  the  tenant,  while  having  the  right  to  make  changes  and  substi- 
tutions from  time  to  time  in  good  faith,  would  have  no  right  to  dismantle 
the  premises  during  the  term.  Loeser  v.  Liebman,  137  N.  Y.,  163  (1893), 
modifying  14  N.  Y.  Supp.,  569,  571    (1891).] 

5  See  1  Chitty  Plead.,  321-326;  Ex  parte  Morrow,  1  Lowell's  Dec,  386 
(1869);  s.  C,  2  N.  B.  E.  (2d.  ed.),  665;  Mathinet  v.  Giddings,  cited  in 
note  (supra).  [West  Coast  Lumber  Co.  v.  Apfield,  86  Cal.,  335,  338  (1890).] 
Thus,  where  under  a  lease  the  lessee  had  a  right  to  remove  the  building 
erected  by  him  upon  the  premises  at  the  end  of  his  term,  provided  that  all 
rents  (which  included  the  taxes  on  the  premises)  had  been  paid  and  all 
covenants  on  his  part  complied  with,  and  the  lessee  offered  to  pay  up  all 
rents  and  taxes  and  quit  possession,  if  th«  lessor  would  allow  him  to  remove 
his  improvements,  and  it  was  proposed  to  prove  that  the  lessor  refused 
to  accept  the  offer,  this  was  held  insufficient.  The  lessee  in  such  case 
should  have  paid  what  was  due  and  kept  his  covenants,  and  then  he 
might  have  removed  his  buildings  without  the  permission  of  the  lessor. 
Clemens  v.  Murphy,  40  Mo.,  121  (1867).  [See  Willard  v.  Eogers,  54 
111.  App.,  583  (1894);  Milligan  v.  Drury,  130  Mass.,  428,  430  (1881); 
Stamps  V.  Cooley,  91  N.  C,  316,  320  (1884).]  In  Parker  v.  Goddard,  39 
Me.,  144  (1855),  N.  let  certain  lands  and  buildings  to  F.  for  six  years, 
and  also  gave  him  a  permit  to  detach  an  addition  and  erect  another  in 
its  place,  and  "to  take  away  or  sell  upon  the  ground  said  building  so 
erected  at  his  own  expense  at  the  determination  of  said  lease  after  said 
restoration"  [i.  e.,  of  the  building  to  its  original  condition]  "has  been 
made,  but  not  before."  The  change  was  made  and  the  new  addition 
erected.  After  its  erection  and  before  the  expiration  of  the  lease,  the 
lease  was  surrendered  to  the  owner  of  the  land  and  accepted.  Before  such 
surrender  the  lessee  sold  the  new  addition  to  plaintiff,  who  at  a  place  dis- 
tant from  the  premises,  and  before  the  six  years  had  expired,  but  after 
such  surrender  of  the  lease,  demanded  of  defendant,  the  owner  of  the 
land,  the  building  to  be  taken  away  (and  not  merely  to  remove  it  from 
the  original  buildings  so  far  that  the  latter  could  be  restored  to  their 
original  condition),  and  told  him  he  was  ready  to  comply  with  all  the  con- 
ditions of  the  permit.     The  defendant  claimed  the  building  as  his  own, 

228 


CHAP.  IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL,  *155 

and  said  he  should  hold  it  by  force  if  an  attempt  was  made  to  remove 
it.  Held,  that  for  the  purpose  of  complying  with  the  conditions  of  the 
permit,  no  demand  was  necessary,  and  that  without  a  compliance  with 
such  conditions,  plaintiff  could  not  legally  remove  the  building,  and  that 
the  claim  to  the  building  under  the  circumstances  and  nature  of  the  demand 
was  no  evidence  of  a  conversion.  Afterwards  the  plaintiff  in  Parker  v. 
Goddard,  sold  said  addition  to  Adams,  who  again  brought  trover  therefor, 
when  it  was  held,  that  the  addition  so  erected  was  personal  property,  and 
that  such  "permit"  was  not  intended  to  limit  the  right  to  sell,  but  the 
right  to  tale  away  the  building;  that  after  such  building  had  become  the 
property  of  a  third  person,  the  termination  of  the  lease  by  the  parties 
thereto  did  not  affect  his  rights,  and  that  he  might  remove  it  at  the  end 
of  the  term  for  which  the  lease  was  originally  given;  that  where  the 
plaintiff  had  done  all  he  could  reasonably  be  required  to  do  to  get  posses- 
sion of  his  property  peaceably,  by  going  to  the  premises  for  the  purpose 
of  removing  the  building  and  restoring  the  old  buildings  to  their  proper 
places,  and  such  building  was  withheld  under  a  claim  of  absolute  owner- 
ship, it  amounted  to  a  conversion  for  which  trover  would  lie.  Adams  v. 
Goddard,  48  Me.,  212    (1859). 

[Where  the  lessor  sold  to  the  lessee  a  dwelling-house  situated  upon  the 
leased  premises  to  be  paid  for  in  installments,  with  a  provision  that,  upon 
default,  the  lessor  could  declare  the  contract  forfeited,  and  the  lease  was 
long  enough  to  allow  the  payment  of  all  installments  if  paid  according  to 
the  terms  of  the  agreement,  it  is  evident  that  the  intention  was  that  the 
house  should  not  be  removed  until  paid  for;  and,  the  lessee  being  in 
arrears,  should  not  be  permitted  to  remove  the  house  so  long  as  the  lessor 
had  a  right  to  declare  the  contract  forfeited,  and  it  would  be  a  matter 
of  great  inconvenience  and  expense  to  get  the  house  back,  if  at  all,  after 
it  was  once  removed,  resulting  in  a  denial  of  his  option  to  forfeit.  Davis 
V.  Stark,  30  Kan.,  565,  568  (1883).] 

[Where  a  tenant  has  placed  a  plate  glass  front  in  a  store  under  a 
contract  permitting  him  to  remove  same  if  he  will  restore  the  front  to  its 
former  condition,  he  will  be  enjoined  from  removing  it,  if  it  be  shown 
that  the  building  has  been  damaged  by  improj)erly  putting  in  the  front, 
and    the    tenant '  is    insolvent.      Levinski    v.    Williamson,    15    Texas    Civ. 

•  App.,  67    (1896).] 

[The  purchaser  of  a  leasehold  interest  on  execution  takes  it  subject  to 
the  conditions.  Snowden  v.  Memphis  Park  Ass'n,  75  Tcnn.,  225,  230 
(1881).] 

[Where  lease  provided  that  improvements  should  form  a  part  of  the 
realty,  but  that  lessees  might  remove  same  by  paying  all  rents,  etc.,  the 
lessor  is  entitled  to  the  improvements,  upon  forfeiture  for  non-payment  of 
rent,  as  against  a  chattel  mortgagee  of  machinery.  Pendill  v.  Maas,  97 
Mich.,  215  (1893).] 

[Where,  under  a  provision  in  the  lease,  the  landlord  entered  for  default 
in  the  payment  of  rent,  and  took  possession  of  the  improvements  made  by 
the  tenant,   the  landlord   is  not   entitlnd   to  an   engine  sold   to  the  tenant, 

229 


•155  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

but  not  paid  for,  the  seller  having  reserved  title,  and  having  had  no 
knowledge  of  the  provisions  in  the  lease.  Webster  v.  Bates  Machine 
Co.,  (U  Neb.,  306   (190:2).] 

[Where  lessee  is  given  the  privilege  of  removal  "when  he  shall  have 
complied  in  full  with  the  conditions  of  the  above  agreement,"  the  right 
of  removal  does  not  depend  upon  the  condition  precedent  of  a  compliance 
in  full  with  the  conditions,  but  merely  postpones  the  right  of  removal 
until  the  conditions  are  complied  with.  If,  therefore,  the  rent  had  been  in 
arrears  at  the  expiration  of  the  lease,  the  lessee  could  not  have  removed 
the  buildings  until  such  rent  had  been  paid.  "Whenever  he  did  pay,  even 
by  suit  at  the  end  of  the  lease,  his  right  to  remove  would  become  absolute. 
Cheatham  v.  Plinke,  1  Tenn.  Ch.,  576,  579   (1874").] 

[Upon  performance  of  the  conditions  by  the  tenants,  their  right  of 
removal  is  complete;  and,  if  the  landlord  prevents  them  from  removing 
their  property,  they  can  bring  trover  therefor.  Watts  v.  Lehman,  107 
Pa.  St.,  106   (1884).] 

[Where  a  lease  provides  that  all  buildings  and  improvements  erected 
by  the  lessee  shall  be  held  and  deemed  as  part  and  parcel  of  the  realty 
and  shall  not  be  removed  until  the  rent  is  paid,  the  landlord  is  not  vested 
•with  a  complete  equitable  title,  but  only  the  right  to  hold  them  until 
rent  is  paid;  and  if  the  landlord  forecloses  his  lien  for  unpaid  rent,  the 
tenant  should  be  given  an  opportunity  to  redeem  within  a  reasonable  time. 
Eooney  v.  Crary,  8  111.  App.,  329    (1880).] 

[The  right  of  the  landlord  to  forfeit  a  building  for  non-payment  of 
rent,  may  be  waived.  Lewis  v.  Ocean  Pier  Co.,  125  N.  Y.,  341,  346  (1891), 
aff'g  3  N.  Y.  Supp.,  911,  912  (1889).] 

[Under  a  lease  giving  the  tenant  the  right  to  remove  improvements, 
rent  was  payable  quarterly  in  advance,  but  the  tenant  never  paid  it 
punctually.  The  tenant  held  over  several  quarters.  Eight  days  after  an 
installment  became  due,  the  landlord  gave  notice  to  quit,  whereupon 
the  tenant  tendered  a  quarter's  rent.  Held,  that  this  would  not  create 
a  forfeiture  which  would  deprive  the  tenant  of  his  right  to  remove 
buildings.     Estabrook  v.  Hughes,  8  Neb.,  496  (1879).] 

[Where  the  tenant  was  obliged  to  pay  taxes,  and  did  so  except  a  small 
amount  for  the  last  year,  which  he  paid  within  a  few  days  after  the 
termination  of  his  lease,  and  within  the  usual  period  when  taxes  are  paid, 
and  without  any  annoyance  to  the  landlord,  a  forfeiture  of  the  right  to 
remove  buildings  can  not  be  sustained.  Allen  v.  Dent,  72  Tenn.,  676, 
680   (1880).] 

[In  Official  Assignee  v.  Maxwell,  11  N.  Z.,  312,  317  (1892),  where  a  lease 
for  five  years  contained  a  covenant  that  the  lessee  should  not  remove  any 
fixtures  unless  he  should  pay  "not  only  rent  to  date,  but  as  well  the  rent 
for  the  whole  of  the  remainder  of  the  term  in  advance,"  and  the  lessor 
entered  for  non-payment  of  rent,  Prendergast,  C.  J.,  was  of  the  opinion 
that  if  the  assignee  in  bankruptcy  had  tendered  rent  up  to  the  date  of 
re-entry,  that  would  have  been  to  the  end  of  the  term  within  the  meaning 
of  the  contract.] 

230 


Cn.VP.  IV.]  SPECIAL  AGREEMENTS  AS  TO  REMOVAL.  *156 

*As  we  have  already  seen,  if  improvements  or  erections  [*156] 
are  so  permanently  connected  with  the  buildings  already  upon 
the  leased  premises  that  they  cannot  be  separated  therefrom 
without  material  injury  to  the  landlord's  property,  they  ought 
not,  *by  the  general  rules  of  law,  to  be  removed;  and  an  [*157] 
agreement  on  the  part  of  the  landlord  that  the  tenant  shall 
have  the  right  to  take  off  and  carry  away  any  and  all  buildings, 
sheds,  and  other  temporary  houses  and  improvements  which  he 
may  erect  upon  the  premises,  will  not  be  construed  to  authorize 
the  taking  away  of  structures,  the  removal  of  which  would  cause 
material  injury  to  the  landlord's  property.^  This  matter  is, 
however,  subject  to  the  control  of  the  parties  by  contract,  and 
where  such  appears  to  be  the  clear  intention  of  the  parties  in 
their  contract,  the  removal  of  such  annexations  would  doubtless 
be  permitted,  though  productive  of  material  injury  to  the  in- 
heritance, the  injury  in  such  case  being  attributable  solely  to  the 
folly  of  the  landlord,  who  might  have  protected  himself  from 
such  consequences  had  he  seen  fit  to  do  so.^    Indeed,  the  tenant 

[Where  a  lease  gave  the  lessee  a  right  to  remove  a  cottage,  and  con- 
tained a  covenant  against  underletting,  this  does  not  prevent  an  assignee 
of  the  lease,  -who  appears  not  to  have  had  any  intent  to  defeat  the 
lessor's  rights,  from  removing  the  cottage  after  the  expiration  of  the 
lease.    Upton  v.  Hosmer,  70  N.  H.,  493  (1900).] 

1  Powell  v.  McAshan,  28  Mo.,  70  (1859).  Napton,  J.:  "In  such  cases 
the  property  is  not  left  in  the  same  condition  in  which  it  is  found.  If  a 
stranger  so  mixes  up  his  property  with  mine  that  it  cannot  be  separated 
without  destroying  or  materially  injuring  mine,  upon  well  settled  prin- 
ciples of  law  and  justice  he  must  lose  his  property.  This  question  ought 
to  have  been  left  to  the  jury."  See,  also,  Stoekwell  v.  Marks,  17  Me., 
455  (1840).  [See  Butler  v.  Colwell,  89  III.  App.,  133,  137  (1900);  Kuhl- 
man  v.  Meier,  7  Mo.  App.,  200,  263  (1879).] 

2 "Where  premises  with  the  buildings  thereon  were  demised  "to  be  used 
for  the  purpose  of  a  soda,  saloratus,  and  drug  factory  and  mill,  and  to 
use  a  steam-engine  and  furnace  therein,"  the  latter  clause  being  designed 
to  enable  the  tenants  to  introduce  their  engine  and  necessary  vessels  and 
apparatus,  which  was  done  by  making  an  aperture  in  the  wall  and  closing 
it  up  again  and  by  removing  stone  steps  leading  to  the  baseinont,  and 
the  brick-work  and  masonry  surrounding  the  boilers  and  the  brick-work  of 
the  furnace  wore  not  connected  with  the  walls  of  the  building,  except  that 
the  flue  of  the  boiler  was  built  into  the  chimney,  and  a  few  bricks  of  the 
furnace  were  run  into  the  wall,  and  both  were  also  secured  by  iron 
bolts  running  through  the  walls  and  fastened  by  nuts,  and  the  pan  in 
question  was  only  set  upon  the  furnace  and  the  kettles  were  not  let  into  the 

231 


•158  THE  LAW  OF  FIXTURES.  |  CHAP.  IV. 

may  bj'-  the  terms  of  his  lease  hold  ''without  impeachment  of 
waste,"  in  which  case  his  right  of  removing  things  annexed  by 
him  will  be  very  extensive  and  almost  without  limit,  this  clause 
having  the  same  effect  in  this  relation  as  in  the  case  of  a  con- 
veyance of  an  estate  for  life.^  The  rights  of  the  parties  in  such 
a  case  are  not  to  be  determined  by  the  law  of  fixtures,  but  by 
a  proper  construction  of  the  instrument  containing  the  clause 
in  question,  a  subject  foreign  to  the  purpose  of  this  treatise. 
[*158]  *When  the  event  contemplated  in  a  lease,  on  the  hap- 
pening of  which  within  a  specified  time  the  tenant's  right  of  re- 
moving fixtures  erected  by  him  on  the  demised  premises  is  to 
be  modified  or  extended,  does  not  take  place,  the  rights  of  the 
parties  in  the  absence  of  any  other  stipulation,  afiPecting  the 
question,  are  to  be  adjusted  in  accordance  with  the  usual  legal 
principles  applicable  to  such  cases.'*     And  the   fact  that  the 

ground;  Held,  that  the  clause  relative  to  the  use  of  the  engine,  etc., 
involved  the  right  to  remove  them  (if  removable  fixtures)  in  the  same 
way  as  brought  in,  if  necessary;  that  the  articles  were  not  fixtures  as 
between  the  landlord  and  tenant,  but  personal  property,  and  an  injunction 
to  restrain  their  removal  in  the  same  way  they  were  taken  in  was  refused. 
Kelsey  v.  Durkee,  33  Barb.,  410  (1861).  The  openings,  however,  in  this 
case  could  be  closed  and  the  steps  replaced  without  injury  to  the  building. 

[That  the  removal  can  not  be  effected  without  some  injury  to  the  free- 
hold  is  not  conclusive  against  the  tenant's  right  to  remove.  Kuhlman  v. 
Meier,  9  Mo.  App.,  595.] 

[Where  the  lessee  of  a  mill  is  given  the  right  to  remove  such  machinery 
as  he  has  put  in,  he  is  also  impliedly  given  the  right  to  do  some  damage 
and  injury  to  the  freehold  in  making  the  removal,  and  he  is  not  liable 
is  he  does  no  unnecessary  damage.  If  he  did,  it  should  be  counted  on 
and  proven.     Hunt  v.  Potter,  47  Mich.,  197   (1881).] 

[Where  a  lease  provided  that  the  lessee  might  remove  such  improve- 
ments "as  shall  be  capable  of  removal  without  injury  to  the  land  itself," 
it  was  held  that  the  lessee  might  remove  a  brick  building.  London  &  S. 
African  Co.  v.  DeBeers  Mines  (1895),  A.  C,  451.] 

3  See,  1  Cru.  Dig.,  tit.  8,  ch.  2,  §  12  (1  Greenl.,  Cru.  Dig.,  p.  *233) ;  1 
Wash.  Eeal  Prop.,  *117. 

*Lemar  v.  Miles,  4  Watts,  330  (1835).  The  lease  in  this  case  contained 
a  stipulation  that  in  ease  the  wells  of  certain  salt-works  failed  within  the 
term  of  three  years,  the  tenants  should  be  at  liberty  to  take  away  all 
the  metal  and  improvements  of  the  works  or  be  paid  the  value  thereof 
at  the  choice  of  the  lessor;  but  the  contemplated  event  did  not  occur,  and 
the  right  of  removing  trade  fixtures  was  held  not  to  be  affected  by  this 
clause. 

232 


CHAP.  IV.]  COVENANTS  TO  REPAIR,  ETC.  *159 

lease  contains  an  agreement  on  the  part  of  the  lessor  to  sell 
the  demised  premises  to  the  lessee,  is  said  not  to  affect  the 
right  of  the  lessee  to  remove  his  trade  fixtures.^ 

Covenants  to  Repair,  etc.,  and  to  Yield  Up  in  Repair,  etc. 

The  effect  upon  the  right  of  the  tenant  to  remove  annexa- 
tions made  by  him  upon  the  demised  premises,  of  covenants 
to  repair  and  to  yield  up  in  repair,  etc.,  the  demised  premises; 
to  repair  and  to  yield  up  in  repair  the  demised  premises,  and 
all  erections,  etc.,  to  be  thereafter  erected  and  built  thereon, 
and  other  similar  covenants,  has  in  various  forms  frequently 
come  before  the  courts  for  determination ;  and  it  has  often  been 
made  a  question  whether  by  such  covenants  the  tenant  was 
deprived  of  his  privilege  of  removing  fixtures,  trade  or  other- 
wise, erected  by  him  upon  the  demised  premises  after  the 
*execution  of  the  lease.  The  determination  of  the  ques-  [*159] 
tion  in  each  ease  is  a  matter  of  interpretation  and  construction 
depending  upon  the  facts  of  the  individual  case  and  tlie  inten- 
tion of  the  parties  as  shown  by  the  contract,  concerning  which 
no  other  rules  can  be  given  than  the  general  rules  on  the  subjects 
of  interpretation  and  construction.'^  It  will,  however,  tlu'ow 
some  light  upon  the  subject  to  review  the  decisions  that  have 
been  made  upon  the  questions  under  consideration,  though  they 
do  not  seem  susceptible  of  a  very  rigid  classification. 

As  to  the  effect  without  more  of  a  simple  covenant  lo  kei^p  the 
demised  premises  in  repair  dui'iiig  \hr  tenancy  imd  lo  yield 
them  up  in  repair  at  the  expiration  of  the  term,  unless  there 

BHolbrook    v.    Chamborlin,    IIG    Mush.,    15.'5    (1874). 

«  See  those  rules  well  cdllccted  in  Blackwell  on  Tax  Titles,  595  et  seq.; 
also  2  Pars.  Cont.,  491  et  seq. 

[A  covenant  to  leave  the  premises  in  good  repair  is  qualifiod  by  a  pro- 
vision permittinfj  the  removal  of  a  l)uiMiii}i;.  (>rny  v.  McT.ennan,  3  Man., 
337,   343    (ISHfi).] 

[Altering  a  house  so  tliat  it  is  substantially  new,  is  not  a  violation 
of  a  covenant  in  a  lease  that  the  house  should  not  be  removed,  where 
the  manifest  object  of  the  covenant  was  to  protect  the  lessor,  and  tlio 
new  improvements  furnish  more  than  double  the  security  which  he  had 
in  the  old;  and  the  lessor  will  not  be  allowed  to  forfeit  the  lease  when 
he  knew  of  and  made  no  objection  to  the  erection  of  such  lasting  im- 
provement.     TTawcs   V.   Favor,    161    Til.,   440    (1S96).] 

233 


•1(30  THE  LAW  OF  KIXTIUES.  [CIIAP.   IV. 

are  special  words  incliuliug:  in  the  terms  of  the  demise  subse- 
quent erections  nuide  during  the  term,  or  unless  in  some  other 
way  an  intention  is  manifested  to  include  within  the  terms  of 
the  covenant  such  subsequent  annexations,  it  will  ordinarily  be 
construed  to  relate  only  to  such  articles  as  formed  a  part  of  the 
demised  premises  at  the  time  of  making  the  demise,  and  to  such 
irremovable  fixtures  as  have  been  subse(iuently  annexed  to  and 
form  a  part  of  the  realty,  and  will  not  extend  to  and  prohibit 
the  removal  of  the  tenant 's  domestic  or  trade  fixtures. 

In  Deeble  v.  McMullen,"  the  lessee  covenanted  "for  himself, 
his  heirs  and  assigns,  to  repair,  maintain,  uphold  and  keep, 
during  the  tenancy,  the  said  mill  and  premises  with  the  ap- 
purtenances, with  all  needful  and  necessary  reparations  and 
amendments,  and  to  yield  them  up  in  such  repair  at  the  deter- 
[*160]  *mination  of  the  tenancy  of  the  lessor,  his  heirs  and  as- 

7  8  Ir.  Com.  Law,  355,  359    (1857). 

See,  however.  Brown  v.  Bluntlen,  Skin.,  121  (1694):  "Covenant  in  a 
lease  to  repair,  etc.,  praedimissa  from  the  time  of  the  lease  to  the  determi- 
nation thereof,  and  so  well  kept  in  repair  shall  give  up  at  the  end  of  the 
term,  not  saying  from  time  to  time ;  afterwards  the  lessee  builds  a  malt- 
house,  and  if  the  covenant  shall  extend  to  it,  was  the  question,  and  holden, 
that  it  should  in  this  case,  for  it  is  a  continuing  covenant;  and  though  the 
house  had  no  actual,  yet  it  had  a  potential  being  at  the  time  of  the  lease. 
Judgment  nisi. ' ' 

[A  covenant  to  keep  all  buildings  in  repair  has  reference  to  those 
upon  the  premises  when  the  lease  was  executed,  and  such  others  as  might 
be  erected  by  the  lessor.  Brown  v.  Keno  Power  Co.,  55  Fed.,  229,  235 
(U.  S.  C.  C,  Nev.,  1893).] 

[If  an  ambiguous  term  is  used,  such  as  the  term  "fixtures,"  a  term 
capable  of  two  meanings,  the  court  should  adopt  that  meaning  which 
will  work  the  least  injustice.  Arglos  v.  McMath,  26  Ont.,  224,  237  (1895)  ; 
and  in  23  Ont.  App.,  44,  47  (1896),  affirming  this  case,  it  was  held  that 
a  covenant  in  a  lease  to  yield  up  the  premises  ' '  together  with  all  buildings, 
erections  and  fixtures"  refers  only  to  what  the  lease  demised  of  the  land- 
lord 's  property,  and  not  to  the  trade  fixtures  of  the  tenant.] 

See  Pyot  v.  St.  John,  Cro.  Jac,  329  (1609),  where  it  was  held  that  carry- 
ing away  a  shelf,  though  not  stated  to  be  fixed,  was  a  breach  of  a  cove- 
nant to  leave  in  repair ;  ' '  for  it  shall  be  intended  fixed. ' ' 

[Where  there  was  a  covenant  to  leave  the  premises  in  repair,  and  the 
lessee  put  down  a  floor  to  protect  the  existing  floor  from  injury  from 
roller  skates,  this  implies  that  he  will  not  leave  the  floor  at  a  higher 
elevation  than  he  found  it,  and  the  floor  would  be  a  tenant's  fixture. 
Howell  V.  Listonville  Eink  Co.,  13   Ont.,  476,   492    (1886).] 

234 


CH.VP.  IV.]  COVENANTS  TO  REP.UR,  ETC.  *160 

signs;"  but  this  covenant  was  not  considered  by  the  court  as 
varying  the  rights  of  the  parties  in  relation  to  trade  fixtures 
(millstones  and  machinery  in  this  case),  though  the  case  was 
decided  upon  another  ground. 

Where,  however,  upon  a  proper  construction  of  the  covenant 
to  repair  and  yield  up  in  repair,  etc.,  such  appears  to  be  the 
intention  of  the  parties  thereto,  such  covenant  may  have  the 
effect  to  prohibit  the  removal  of  annexations  made  by  the  ten- 
ant subsequently  to  the  making  of  the  demise,  or  purchased 
from  the  outgoing  tenant  and  otherwise  removable.^ 

8  In  Rex  V.  Topping,  McClel.  and  Y.,  544  (1825),  various  engines  and 
other  fixtures  used  in  mining  and  smelting  were  standing  on  tlie  premises 
at  the  date  of  the  demise,  of  which  the  engines  were  purchased  by  the 
incoming  from  the  outgoing  tenants,  and  were  not  mentioned  in  the  general 
words  of  the  demise,  nor  in  the  clause  of  re-entry.  But  the  lessees  cove- 
nanted to  keep  the  "said  engines"  (the  word  "engines"  not  having 
occurred  before)  in  good  and  tenantable  repair,  and  the  same  in  such  state 
to  yield  up  at  the  end,  or  other  sooner  determination  of  the  term.  The 
lessor  covenanted  that  the  lessees  might  remove  (at  the  end  of  the  term 
or  sooner,  except  as  in  the  cases  and  events  before  mentioned,  in  any  of 
which,  the  property  being  extended  or  taken  in  execution  being  one,  it 
was  made  lawful  for  the  lessor  to  re-enter  as  into  his  first  or  former  estate) 
all  such  engines,  etc.,  as  had  theretofore  been  erected,  and  all  such  as  should 
by  themselves  be  erected  for  carrying  on  the  smelting  business.  By  other 
covenants  the  lessees  covenanted  to  build  an  engine  on  the  mining  prem- 
ises; and  the  lessor,  that  the  lessees  might  at  any  time  during  the  term, 
or  within  twelve  months  after  the  expiration,  or  other  sooner  determination 
thereof,  remove  all  such  engines  as  last  mentioned,  unless  the  lessor  should 
wish  to  re-purchase  the  same.  The  lessees  built  one  engine  and  part  of 
another  during  the  term:  Held,  that  upon  the  forfeiture  of  the  demise  by 
the  taking  upon  a  writ  of  extent,  the  lessees  had  lost  their  right  to  remove 
any  of  the  fixtures,  and  that  they  all  belonged  to  the  lessor,  such  being 
the  intention  of  the  parties  as  collected  from  the  covenants. 

So,  under  a  lease  of  vacant  ground  at  a  nominal  rent  ($1.00  per  year), 
upon  the  condition  and  covenant  on  the  part  of  the  lessees  to  erect  a 
valuable  building  thereon  (known  as  the  "Crystal  Palace"),  and  at  the 
expiration  of  the  term  to  surrender  the  premises  in  as  good  state  and 
condition  as  reasonable  use  thereof  will  permit,  damages  by  the  elements 
excf'ptfd,  thfTc  being  nf>  reservation  to  the  lessees  of  a  right  to  remove 
said  building,  such  building  belongs  to  the  lessors  at  the  cxjiiration  of  tlio 
term,  and  hence  they  have  an  insurable  interest.  Mayor,  etc.,  of  N.  Y.  v. 
Hamilton  Fire  Inw.  Co.,  10  Bosw.,  5.37  (180.3);  Mayor,  etc.,  of  N.  Y.  v. 
Brooklyn  Fire  Ins.  Co.,  41  Barb.,  231  (1804);  Mayor,  etc,  of  N.  Y.  v. 
Exchange  Fire   Ins.   Co.,   9   Bosw.,   424    (1862);    s.   c,   3   Abb.   Ct.   App. 

235 


*1G1  THE  LAW  OP  FIXTURES.  [CHAP.  IV. 

[*1G1]  *The  question  sometimes  turns  upon  what  are  to  be 
considered  repairs,  and  what  fixtures,  within  the  meaning  of  the 
covenant. 

In  Sunderhind  v.  NeAV^ton,^  the  lessee  of  a  mill  and  a  steam- 
engine  therein,  covenanted  during  the  continuance  of  the  de- 
mise to  keep  in  good  repair  the  mill ;  and  also  the  steam-engine, 
with  the  boilers,  etc.,  renewing  at  his  own  expense  such  parts 

Dec,  261  (1867).  The  first  two  eases  were  respectively  affirmed  on  other 
grounds  in  39  N.  Y.,  45;  3  Abb.  Ct.  App.  Dee.,  251.  See,  however.  Ex 
parte  Goreley,  13  W.  E.,  60  (1864);  s.  c,  10  Jur.  (N.  S.),  1085,  cited 
ante,  p.  *78. 

[Where  a  lease  of  a  vacant  lot  contained  a  covenant  by  the  lessee  to 
build,  and  one  that,  on  the  expiration  of  his  term,  he  would  surrender 
the  demised  premises  in  as  good  state  and  condition  as  reasonable  use 
and  wear  would  permit,  it  shows  an  intention  to  make  the  building  a  part 
of  the  realty.    Deane  v.  Hutchinson,  40  N.  J.  Eq.,  83,  88  (1885).] 

[A  covenant  that  tenant  will  leave  premises  "in  as  good  condition  as 
the  same  now  is  or  may  be  made  by  improvements,"  binds  him  to  leave 
buildings  erected  by  him.     Carver  v.  Gough,  153  Pa.  St.,  225,  229  (1893).] 

[A  covenant,  at  all  times  during  the  term,  to  repair,  support,  amend 
and  keep  the  premises  with  all  necessary  reparations  and  amendments 
whatsoever,  and  the  said  premises  so  repaired,  with  the  appurtenances 
and  all  things,  which  at  the  time  of  the  execution  of  the  indenture  were, 
or  at  any  time  during  the  term,  should  be  fixed  or  fastened  to  or  set  up 
in  or  upon  the  premises,  and  at  the  expiration  of  the  term  peaceably 
yield  up  to  the  lessor,  with  all  and  singular  the  fixtures  thereto  belonging, 
in  as  good  condition  as  the  same  were  at  the  execution  of  the  indenture, 
reasonable  use  excepted,  covers  small  buildings  resting  upon  blocks  of 
wood,  stumps  and  scantlings,  placed  upon  the  premises  during  the  term. 
AUardice  v.  Disten,  11  Up.  Can.  C.  P.,  278.] 

[For  additional  cases  holding  that  the  effect  of  covenants  was  to 
prohibit  the  removal  of  improvements  made  by  tenants,  see  West  Coast 
Lumber  Co.  v,  Apfield,  86  Cal.,  335,  339  (1890);  Western  &  Atlantic  E.  E. 
Co.  V.  State,  14  L.  E.  A.,  438,  452  (Ga.  Spec.  Com.,  1891) ;  Brown  v. 
Ward,  119  Iowa,  604  (1903);  Davy  v.  Lewis,  18  Up.  Can.  Q.  B.,  21;  Don- 
kin  V,  Crombie,  11  Up.  Can.  C.  P.,  605;  and  ante,  p.  *153.] 

So,  where  the  lessee  covenanted  to  keep  in  repair  and  to  deliver  up  at 
the  end  of  the  term  in  like  condition  as  when  taken,  etc.,  it  was  held  that 
a  box  stall  erected  by  him  could  not  be  removed  if  its  removal  would 
injure  the  freehold.     Murray  v.  Moross,  27  Mich.,  203   (1873). 

[Where  the  tenant  is  obliged  to  make  "all  needed  repairs,"  he  acquires 
no  right  to  improvements  made  by  him  which  are  necessary  for  other 
reasons  than  wear  and  tear.  Ashby  v.  Ashby,  59  N.  J.  Eq.,  547,  559 
(1900).] 

13  Sim.,  450   (1830). 

236 


CHAP.  IV.]  COVEXANTS  TO  REPAIR,  ETC.  *162 

thereof  as  should  be  broken  or  damaged  beyond  the  unavoid- 
able deterioration  occasioned  by  reasonable  wear  and  tear;  and 
the  same  so  kept  in  repair  and  renewed  at  the  expiration  of  his 
term  to  deliver  up  to  the  lessor.  During  the  term,  for  the  pur- 
pose of  increasing  the  power,  the  tenant  removed  and  disposed 
of  all  the  works  of  the  engine  except  the  fly-wheel,  fiy-shaft,  and 
boiler,  and  made  alterations  in  its  machinery,  converting  it  from 
an  engine  of  ten  horses  power  into  one  of  twenty  horses  power 
upon  an  improved  principle,  and  the  substituted  engine  was 
considered  by  the  court  as  only  an  extensive  repair  of  the  old 
engine,  and  subject  to  the  stipulations  in  the  lease;  and  the 
assignees  in  bankruptcy  of  the  tenant  were  enjoined  from  re- 
moving the  new  parts  of  the  engine,  subject  to  an  action  to  be 
brought  by  the  lessors  to  try  the  right. 

In  Mason  v.  Fenn,^  A.  leased  to  B.  et  al.,  a  flouring  mill  for 
a  term  of  years,  the  lessees  covenanting  to  restore  the  premises 
in  as  good  repair  as  received,  natural  wear  and  fire  onl}^  ex- 
cepted. The  lease  also  contained  a  provision  that  be*sides  [*162] 
certain  repairs  to  the  floor  and  in  putting  in  a  new  set  of  wheat 
elevators,  which  were  to  be  done  by  the  lessees  and  the  expense 
thereof  deducted  from  the  rent, ' '  other  fixtures  the  said  parties  of 
the  second  part  may  put  in  said  mill  beneficial  to  the  same,"  at 
the  expiration  of  the  term  were  to  be  paid  for  by  the  landlord  or 
the  tenants  might  remove  them.  The  tenants  were  obliged  dur- 
ing the  term  in  order  to  run  the  mill  to  put  in  a  new  boiler, 
back-stand  and  mud-valve.  The  opinion  of  the  court  was  de- 
livered by  Treat,  C.  J.,  who,  referring  to  this  branch  of  the 
case,  said:     "We  agree  in  opinion  with  the  circuit  judge,  that 

2  13  111.,  525  (1852).  In  Darby  v.  Farrow,  1  McCord,  517  (1821),  upon 
an  agreement  to  rent  house  and  lot,  out  of  the  rent  of  which  was  "to  be 
deducted  any  repairs  that  may  be  done  to  the  same, ' '  the  court  held,  that 

the  erection  of  a  shed  to  the  stable,  a  fowl-house,  and house  were  not 

repairs. 

[Where  the  lessee,  at  the  request  of  the  lessor,  and  on  the  latter 's 
promise  to  pay  for  the  work,  constructed  a  barn,  using  an  old  house  upon 
the  farm  in  part  construction,  and  removed  three  additions  to  the  dwelling- 
house,  and  converted  them  into  tenements,  the  lessor  can  not  escape  liability 
because  the  lease  requires  the  lessee  to  "repair"  and  "improve"  the 
property,  as  the  covenants  did  not  embrace  the  erection  of  new  buildings 
■whether  built  of  new  or  old  material.  Nayo  v.  Noezel,  50  N.  J.'  Law, 
523    (1888).] 

237 


•163  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

the  articles  in  question  were  fixtures  within  the  agreement  of 
the  parties,  for  which  compensation  was  to  be  made  by  the 
hiudlord,  or  the  tenant  might  remove  them  at  tlie  expiration  of 
the  term.  They  were  clearly  of  a  beneficial  character,  for  with- 
out them  the  mill  could  not  be  used.  The  old  boiler  became 
worthless,  and  it  was  absolutely  necessary  to  the  enjoyment  of 
the  demised  premises  that  a  new  one  should  be  procured.  We 
are  not  inclined  to  hold  that  the  landlord  had  the  right  to  re- 
tain the  articles,  because  the  tenant  covenanted  to  restore  the 
premises  in  as  good  a  state  of  repair  as  he  received  them,  with 
the  exception  of  natural  wear  and  casualty  by  fire.  The  parties 
could  hardly  have  contemplated  such  extensive  expenditures  in 
the  way  of  reparations.  It  was  their  intention  that  the  tenant 
should  incur  all  necessary  expense  in  keeping  the  buildings  and 
machinery  in  repair;  not  that  he  should  be  compelled  at  his  own 
cost  to  erect  buildings,  and  provide  new  engines  and  boilers  in 
the  place  of  those  that  could  not  be  repaired.  For  any  additions 
to  the  property  in  the  way  of  repairs,  the  tenant  could  not  de- 
mand compensation,  nor  could  he  detach  the  materials  usecf  and 
take  them  away.  But  the  old  boiler,  without  any  fault  on  his 
part,  became  incapable  of  being  repaired,  and  without  a  new  one 
the  mill  would  not  operate.  It  was  not  his  duty,  under  such  cir- 
cumstances, to  furnish  a  new  boiler  at  his  own  expense  for  the 
benefit  of  the  landlord.  The  articles  in  question  were  entirely 
new,  and  were  put  in  the  mill  for  the  temporary  convenience 
of  the  tenant,  and  they  could  be  removed  without  detriment 
to  the  mill  and  without  injury  to  the  landlord.  The  agree- 
[*163]  *ment  secured  the  tenant  compensation  for  these  im- 
provements or  the  right  to  take  them  away  at  the  end  of  the 
term." 

The  effect  of  a  covenant  to  repair  and  to  yield  up  in  repair 
the  demised  premises  and  all  erections,  etc.,  to  be  thereafter 
erected  and  built  thereon,  has  also  been  considered  in  a  num- 
ber of  cases.    In  Naylor  v.  Gollinge,^  the  lessee  had  covenanted 

1  1  Taunt.,  19  (1807).  See,  also,  Thresher  v.  East  London  Water  Works, 
2  B.  &  C,  608  (1824);  s.  c,  4  D.  &  E.,  62,  where  it  was  held,  that  lime 
kilns  erected  with  brick  and  mortar  with  their  foundations  let  into  the 
ground,  were  buildings  within  the  meaning  of  a  covenant  to  repair 
buildings. 

Where  in  the  lease  of  a  farm  the  tenant  covenanted  to  keep  and  sur- 

238 


CHAP.  IV.]  COVENANTS  TO  REPAIR,  ETC.  *164 

that  he  would,  during  the  continuance  of  the  lease,  at  his  own 
proper  costs  and  charges,  well  and  sufficiently  repair,  etc.,  the 
said  messuage  or  tenements  and  premises,  and  all  erections 
and  buildings  then  already  erected  and  built,  as  also  all  other 
erections  or  buildings  that  might  thereafter  be  erected  and 
built  upon  the  premises,  and  the  same  premises  in  such  good 
and  sufficient  repair  would  at  the  end  or  other  sooner  determi- 
nation of  his  term  peaceably,  etc.,  yield  up,  etc.;  and  it  was 
held  by  the  Court  of  Common  Pleas  that  the  covenant  in- 
cluded erections  and  buildings  erected,  built  and  used  on  the 
demised  premises  by  the  tenant  for  the  purpose  of  trade  and 
manufacture  only,  where  such  erections  were  let  into  and  fixed 
to  the  soil  and  freehold;  but  not  erections  and  buildings  so 
erected  and  used  for  trade  purposes,  but  which  were  not  let 
into  the  ground  or  freehold,  but  were  built  and  supported  on 
blocks  or  pattens  of  wood  laid  upon  the  ground,  which  latter 
were  held  to  be  mere  chattels  and  not  erections  or  buildings 
within  the  meaning  of  the  covenant.^  It  was  urged  by  counsel 
*in  this  case,  with  reference  to  the  buildings  let  into  the  [*164] 
soil,  that  it  was  not  the  intention  of  the  parties  by  this  covenant 
to  restrain  the  operation  of  the  general  rule  as  to  the  remova- 
bility of  buildings  erected  by  the  tenant  for  trade  purposes ;  that 
the  object  of  the  covenant  was  merely  to  provide  that  those 
buildings  which  the  tenant  was  bound  by  law  to  leave  on  the 

render  in  repair  the  demised  premises  and  all  erections,  buildings,  etc., 
to  be  erected  thereon,  and  during  the  term  the  tenant,  with  the  permission 
of  the  landlord  who  was  the  lord  of  the  manor,  built  a  house  and  farm 
buildings  on  the  waste  adjoining  the  farm  and  not  included  in  the 
original  demise,  and  held  and  enjoyed  the  same  down  to  the  termination 
of  the  lease:  Held,  that  though  there  was  no  liability  at  law,  yet  in 
equity  the  permission  to  build  was  equivalent  to  permission  that  the  thing 
built  should  be  treated  as  part  of  the  original  demise  and  subject  to  all 
the  conditions,  covenants  and  agreements  api)lying  to  tho  property  origi- 
nally demised,  and  that  the  tenant  was  under  obligation  to  keep  such 
house  and  farm  buildings  in  repair.  White  v.  Wakley,  26  Beav.,  17  (1858)  ; 
s.  c,  28  L.  J.   (N.  S.),  Chanc,  7. 

2  See,  also.  Dean  v.  Allalley,  3  Esp.,  11  (ITOH),  where  certain  sheds 
called  "Dutch  barns"  were  held  not  to  be  included  within  a  covenant 
to  leave  in  repair  all  "buildings"  erected  or  to  be  erected,  etc.  Lord 
Kenyon,  in  that  case,  said:  "It  (the  covenant)  means  that  the  tenant 
shall  leave  all  those  buildings  which  are  annexed  to  and  become  part  of 
the  reversionary  estate,"  [See  Plamondon  v.  Lefebvre,  3  Que.  Tj.  R.,  288 
(1877).]  239 


*165  THE  LAW  OP  FIXTURES.  [CHAP,  IV. 

premises,  should  be  left  in  a  proper  state  of  repair;  but  the 
eourt  interposing,  observed,  that  the  parties  were  precluded 
from  all  general  argument  by  the  express  words  of  the  cove- 
nant ;  that  the  defendant,  in  order  to  succeed  upon  this  part  of 
his  case,  must  prove  that  erections  and  buildings  raised  for  the 
purposes  of  trade  were  not  in  fact  erections  and  buildings. 
If  the  tenant  meant  to  exclude  buildings  of  this  nature,  it 
should  have  been  so  expressed,  but  that  the  court  could  not  go 
out  of  the  covenant.  The  correctness  of  the  decision  of  Nay- 
lor  V.  Collinge  seems  unquestionable  so  far  as  regards  the  first 
branch  of  the  case,  it  being  impossible  to  say  that  erections 
and  buildings  raised  for  the  purposes  of  trade  only,  are  for  that 
reason  any  less  erections  and  buildings.  With  reference  to  the 
second  branch  of  the  case,  vs^hile  it  seems  clear  that  such  a  cov- 
enant, or  a  covenant  to  redeliver  possession  with  all  fixtures, 
etc.,  would  not  in  general  include  mere  chattels  not  coming 
literally  within  the  words  of  the  covenant,^  yet  it  is  difficidt  to 
[*165]  *understand  why  the  "erections  and  buildings"  in  ques- 
tion, coming  as  they  do  exactly  within  the  words  of  the  cove- 
nant, are  any  less  erections  and  buildings  on  account  of  their 
being  built  upon  and  supported  by  blocks  or  pattens  of  wood 

3  See  Holbrook  v.  Chamberlin,  116  Mass.,  155,  162  (1874) ;  Ex  parte 
Morrow,  1  Lowell's  Dec,  386  (1869);  s.  c,  2  N.  B.  E.  (2d.  ed.),  665, 
furniture  consisting  of  sets  of  drawers  fitted  but  not  fastened  to  the 
shop. 

See,  however,  Duke  of  Beaufort  v.  Bates,  3  DeG.  F.  &  J.,  381  (1862) ; 
s.  C,  8  Jur.  (N.  S.),  270;  10  W.  E.,  200;  6  L.  T.  (N.  S.),  82  (reversing 
s.  c,  10  W,  E.,  149;  5  L.  T.  (N.  S.),  546).  In  this  case  the  lessees  cove- 
nanted to  uphold  and  keep  in  good  repair  the  furnaces  and  other  works, 
houses  and  other  buildings  then  standing  or  to  be  erected  on  the  demised 
premises,  and  at  the  expiration  of  the  term  to  deliver  up  the  coal  and 
iron-works  and  mines,  etc.,  and  all  ways  or  roads  in,  upon,  or  under  the 
same  lands  respectively,  in  such  good  repair,  order,  state  and  condition 
as  that  the  said  coal  and  iron-works  may  be  continued  and  carried  on  by 
the  said  Henry,  Duke  of  Beaufort,  etc. ;  and  it  was  held,  that  the  tram 
plates  and  wooden  sleepers  on  which  the  tram  plates  lie  or  are  fixed,  not 
being  fixed  to  the  freehold  farther  than  they  were  sunk  in  the  soil  by 
the  pressure  of  the  wagons  passing  over  them,  were  mere  trade  chattels 
and  were  not  included  by  the  words  "roads  and  ways,"  which  may 
exist  without  sleepers  and  tram  plates;  and  therefore,  the  lessor  was 
not  entitled  to  an  injunction  to  prevent  their  removal  by  a  judgment 
creditor  of  an  under-lessee. 

240 


CHAP.  rV.]  COVENANTS  TO  REPAIR,  ETC.  *165 

laid  upon  the  groimd.  However,  as  was  well  observed  by  Lord 
Justice  Turner  in  Duke  of  Beaufort  v.  Bates,  it  seems  clear  that 
a  lease  ought  not  to  be  construed  so  as  to  take  away  the  ordinary 
legal  right  of  a  tenant  to  remove  trade  chattels  unless  such  an 
intention  is  clearly  expressed. 

Where  the  trade  fixtures  are  other  than  buildings  (e.  g.,  mere 
utensils,  or  machines),  the  words  of  the  covenant  remaining 
substantially  the  same,  the  question  becomes  more  difficult. 

In  Holbrook  v.  Chamberlin,'*  a  covenant  by  the  lessees  of  a 
mill,  "to  deliver  up  the  premises  and  all  future  erections  or 
additions  to  or  upon  the  same, ' '  at  the  end  of  the  term,  "in  as 
good  order  and  condition  as  the  same  now  are  or  may  be  put 
into  by  the  lessor,"  was  held  to  be  limited  in  purpose  and  effect 

*  116  Mass.,  155  (1874).  In  this  case,  the  fact  that  the  lease  contained 
an  agreement  on  the  part  of  the  lessor  to  sell  the  premises  to  the  tenants, 
was  not  considered  as  affecting  the  rights  of  the  lessees  to  remove  trade 
fixtures  during  the  term.  As  to  the  point  stated  in  the  text,  see,  however, 
Bidder  v.  Trinidad  Petroleum  Co.,  17  W.  R.,  153  (1868) ;  cited  post. 

[By  provisions  in  an  original  lease  or  subsequent  renewals,  sub-leases 
and  assignments,  the  lessee  was  to  erect  cotton-mills  which  were  subse- 
quently changed  to  flouring-mills,  and,  by  covenant,  the  tenant  was  bound 
"to  keep  or  cause  to  be  kept  the  said  mills  and  the  works  and  machinery 
therein,  and  belonging  thereto,  in  working  order,  repair  and  condition; 
and  at  the  determination  of  the  demise  to  yield  up  the  demised  premises, 
and  all  buildings  and  improvements  thereon,  in  the  like  good  and  sufficient 
tenantable  order,  repair  and  condition."  Eeld,  that  the  tenant  could  not 
remove  anything  originally  demised,  nor  any  substituted  machinery;  but 
could  remove  trade  fixtures  introduced  as  improved  methods  to  fulfill 
functions  formerly  performed  by  manual  labor  or  movable  utensils, 
Cosby  V.  Shaw  (1887),  23  L.  R.,  Ire.,  181,  varying  19  L.  R.,  Ire.,  307.] 

[Where  a  lessee  agreed  to  convert  the  premises  into  a  theater  and 
surrender  all  additions,  alterations  and  improvements,  it  was  held  that  this 
did  not  include  chairs  fastened  to  the  floor  by  screws,  at  least  as  against 
an  unpaid  seller  holding  a  mortgage  thereon.  Metropolitan  Concert  Co. 
V.  Sperry,  9  N.  Y.  St.  Rep.,  342   (1887),  aff'd  120  N.  Y.,  620   (1890).] 

[A  lessee  covenanted  to  deliver  up  the  premises  at  the  end  of  the  term 
"and  all  future  erections  and  additions  to  or  upon  the  same."  He  placed 
in  the  store  three  dynamos,  two  rheostats,  two  ampere  meters,  one  volt 
meter,  and  one  lighting  dynamo.  Held,  that  the  machinery  was  not  "erec- 
tions or  additions."     Licbc  v.  Nicolai,  30  Ore.,  3G4,  .369   (1897).] 

[Where  the  tenants  are  to  repair  and  yield  up  "the  demised  premises," 
and  the  contract  shows  that  fixtures  are  not  a  part  of  the  demised  prem- 
ises, the  leasees'  right  of  removal  is  not  affected.  Busby  v.  Joseph,  7 
N.  S.  W.,  Supr.  Ct.,  200  (1868).] 

16  241 


•166  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

to  new  buildings  erected,  or  old  buildings  added  to  such  build- 
ing, and  not  to  be  extended  so  as  to  deprive  the  tenants  of  the 
right  to  remove  trade  fixtures  (consisting  of  counter-shafting,> 
pulleys,  hangers  and  belts,  a  portable  boiler  and  steam  pipes), 
much  less  personal  property  put  by  them  upon  the  premises 
during  the  term.  This  case  was  distinguished  from  Naylor  v. 
Collinge,  suj^ra,  in  this  in  that  case  the  things  removed  were 
"buildings"  coming  within  the  very  words  of  the  covenant. 

On  the  other  hand,  though  such  conflict  seems  more  appar- 
ent than  real,  there  are  some  cases  which  seem  to  maintain  a 
[*166]  *contrary  doctrine  ;i  and  doubtless  the  right  of  a  tenant 
to  remove  trade  or  other  removable  fixtures,  or  even  mere  chat- 
tels, may  be  qualified  or  even  entirely  taken  away  by  the  cove- 
nants in  the  lease,  where,  by  a  proper  construction  of  the  instru- 
ment, such  appears  to  be  the  intention  of  the  parties. 2     This 

1  See  the  cases  cited  in  tHe  following  notes. 

2  See  Ex  parte  Morrow,  1  Lowell's  Dec,  386  (1869);  s.  C,  2  N.  B.  E. 
(2d.  ed.),  665,  where  a  stipulation  that  the  premises  should  be  "used  as 
a  boot  and  shoe  store,  and  all  fixtures  of  every  description  are  to  be  put 
into  said  premises  by  said  lessee  at  his  own  expense,"  with  the  right  to 
remove  at  the  end  of  the  term  such  as  could  be  moved  without  injury  to  the 
premises,  provided  the  lessee  should  have  kept  all  his  covenants,  but  other- 
wise not;  and  that  none  of  them  should  be  removed  during  the  term 
without  the  consent  of  the  lessor,  was  held,  to  allow  the  removal  of  trade 
fixtures,  consisting  of  gas  fixtures  and  shelving,  only  on  payment  of  the 
arrears  of  rent. 

Where  a  lease  was  made  to  an  oil  refiner,  of  land,  "and  also  the  erec- 
tions and   buildings   then   already   erected   and   to   be   erected   and  built" 
thereon,    and   the   lessee   covenanted   to    expend    2500L    in    such    buildings 
thereon,  which  were  to  be  of  a  permanent  character,  and  to  keep  the  de- 
mised  property   in   repair,   and   deUver   the   said   premises   up   at   the   end 
of  the  term,  together  with  all  the  doors,  wainscots,   etc.,  "pumps,  pipes, 
cisterns,  and  other  things  which  now  are  or  at  any  time  during  the  said 
term  shall  be  fixed  or  fastened  to   the  freehold  of  the   said  premises,   or 
belong   thereto. ' '     Held,   that   these   words   included   retorts,   cisterns,   and 
other  trade   fixtures  of  the   oil   refinery,  which   consequently   could  not  be 
removed  by  the  lessee.     Bidder  v.  Trinidad  Petroleum  Co.,   17  W.  R.,  153 
(1868).     See,  also,  Dumergue  v.  Eumsey,   2   H.  &   C,   777    (1863);   S.   c, 
12  W.  E.,  205;     33  L.  J.  (N.  S.),  Exch.,  88;  10  Jur.  (N.  S.),  155;  9  L.  T. 
(N.  S.),   775;   Stansfield  v.  Mayor  of  Portsmouth,  4   C.  B.    (N.  S.),   120 
(1858);  s.  C,  4  Jur.   (N.  S.),  440;   27  L.  J.,  C.  P.,  124,  where  a  distinc- 
tion was  made  in  the   lease  between  two   species  or   sets   of   fixtures,   it 
being  stipulated  in  effect  that  one  set  should  go  to  the  lessors  and  the 
other  to  the  lessee. 

242 


CHAP.  IV,]  COVENANTS  TO  REP.VIR,  ETC.  *166 

effect  is  sometimes  produced  by  the  use  in  such  covenants  of 
other  terms,  or  terms  more  comprehensive  in  their  meaning  than 
the  term  "fixtures."  Thus,  the  term  "improvements,"  as  be- 
tween lessor  and  lessee,  has  been  held  to  have  more  compre- 
hensive meaning  than  "fixtures,"  and  to  include  the  latter.^ 

[For  additional  cases  denying  the  lessee  the  right,  under  his  covenant, 
to  remove  trade  fixtures,  see  Switzer  v.  Allen,  11  Mont.,  160  (1891) ; 
Scott  V.  Haverstraw  Brick  Co.,  16  N.  Y.  Supp.,  670  (1891),  aff'd  135 
N.  Y.,  141;   Allen  v.  Gates,  73  Vt.,  222,  227   (1900);  and,  ante,  p.  *153.] 

[Where  a  grist  mill  was  devised  to  one  with  a  privilege  to  another 
to  occupy  it  for  rent,  the  latter  to  "keep  the  said  property  in  good 
repair  at  his  own  proper  cost,"  held,  that  the  tenant  could  not  remove 
substituted  machines  although  better  than  the  old,  and  only  annexed  enough 
to  keep  them  steady.     Ashby  v.  Ashby,  59  N.  J.  Eq.,  536   (1900).] 

[Where  the  lease  requires  the  lessee  to  erect  a  building,  it  is  not 
removable,  although  ordinarily  it  might  be.   Boyd  v.  Douglas,  72  Vt.,  449.] 

[A  lease  provided  that  all  trade  fixtures  should  be  delivered  up  at  the 
expiration  of  the  term.  A  sub-lease  provided  that  all  landlord's  fixtures 
should  be  delivered  up  at  the  expiration  of  the  term.  The  sub-lessee  was 
not  aware  of  the  covenant  in  the  superior  lease,  and  placed  green-houses 
and  other  fixtures  upon  the  land,  which  were  claimed  by  the  superior  land- 
lord. Held,  that  there  was  no  implied  covenant  by  the  sub-lessor  that 
there  would  be  no  interference  with  these  fixtures.  Porter  v.  Drew  (1880), 
5  C.  P.  D.,  143.] 

3  In  Martyr  v.  Bradley,  9  Bing.,  24  (1832)  ;  s.  c,  1  L.  J.  (N.  S.),  C.  P., 
147 ;  2  Mo.  &  Sc,  25,  the  tenant  took  a  lease  of  a  water  corn-mill,  together 
with  two  pair  of  mill-stones,  machines,  gear-works,  running  tackle,  etc., 
in  or  aflSxed  to  the  mill,  and  covenanted  to  keep  the  premises  in  repair, 
and  the  said  water  corn-mill,  etc.,  and  other  premises  demised,  at  the 
end  of  the  demise  peaceably  to  yield  up,  "together  with  all  locks,  bolts, 
bars  and  other  fixtures,  fastenings  and  improvements  which  then  were, 
or  wliich  should  or  might  at  any  time  or  times  during  the  continuance  of 
that  demise  be  fixed,  fastened  or  set  up  in,  upon,  or  about  the  premises 
or  any  jiart  thereof,  in  good  plight  and  condition,  reasonable  use  and 
wear  only  excepted."  During  the  term  the  tenant  substituted  two  new 
French  mill-stones  for  two  old  ones  which  he  had  found  on  the  premises; 
the  lower  stone  was  rammed  in  and  fixed  with  mortar,  and  the  upper 
revolved  on  its  axis.  When  he  left  the  premises  he  took  away  these  new 
stones  and  left  in  their  place  the  old  ones.  Held,  that  the  word  ' '  improve- 
ments" included  the  new  mill-stones  which  might  not  be  removed  by  the 
tenant,  notwithstanding  it  was  the  general  custom  for  tenants  to  remove 
such  stones.  See,  also.  Rex  v.  Ilungcrford  Market  Co.,  4  B.  &  Ad.,  596 
(1833),  where,  under  the  Act  11  G.,  4,  c.  70,  empowering  the  defendant 
company  to  purchase  certain  estates,  and  providing  for  compensation  for 
injury  to  improvements,  tenant's  fixtures,  etc.,  it  was  held,  that  where  the 
lease  contained  covenants  to  yield  up  the  premises  in  repair,  with  all  fix- 

243 


•166  THE  LAW  OP  FIXTURES.  [CIIAP,  IV. 

tures  and  improvements,  the  assignee  of  a  lease  turned  out  after  the 
expiration  of  the  lonaiioy  having  no  legal  interest  in  the  tenant's  fixtures, 
was  not  entitled   to   compensation   under   the  act. 

So,  where  the  lessees  of  premises  known  as  Castle  Garden,  "covenanted 
at  the  end  of  their  term  to  surrender  to  the  lessors  the  demised  premises, ' ' 
and  "all  improvcmetits  that  may  have  been  placed  thereon  by  the  said 
parties  of  the  second  part"  [the  lessees],  "which  improvements  are  to 
belong  to  said  parties  of  the  first  part"  [the  lessors],  etc.,  it  was  held, 
that  such  covenant  included  "gas-pipes,  burner,  gas-ladders,  and  two  largo 
and  one  small  meters,  lumber  in  hat  room,  fifteen  batten  doors,  hinges 
and  locks,  floor  of  stage,  large  glass  case,  benches  in  gallery,  benches  under 
gallery,  upholstered  wood-work  and  canvas  constituting  the  stage,  gas- 
pendant,  under-gallery,  picket  fence  on  the  bridge  leading  to  the  garden, 
sheds  on  the  north  and  south  sides  of  the  building,  fixtures  and  ticket  office, 
board  fence  on  the  north  side  of  the  building."  French  v.  The  Mayor, 
16  How.  Pr.,  20  (1858);  s.  c,  29  Barb.,  363.  Davies,  J.:  "Improve- 
ments, clearly,  in  the  lease  here  used,  embrace  every  addition,  alteration, 
erection  or  annexation  made  by  the  lessees  during  the  demised  term  to 
render  the  premises  more  available  and  profitable  or  useful  and  con- 
venient to  them.  It  is  a  more  comprehensive  word  than  'fixtures,'  and 
necessarily  includes  it  and  such  additions  as  the  law  might  not  regard  as 
fixtures.  It  would  be  difficult  to  select  a  more  comprehensive  word;  and 
where  the  parties  say  that  all  improvements  which  may  be  placed  on  the 
premises  shall  belong  to  the  lessors,  it  is  difficult  to  say  what,  if  anything, 
would  be  excluded."  West  v.  Blakeway,  2  M.  &  G.,  729  (1841);  s.  c, 
3  Scott  N.  E.,  199;  9  Dowl.  P.  C,  846;  5  Jur.,  630,  was  relied  on  as  an 
authority  for  the  above  decision.  In  this  case  the  lessee  covenanted  to  yield 
up  the  demised  premises  at  the  expiration  of  the  term,  together  with  all 
erections  and  improvements,  which,  during  the  term  thereby  granted,  should 
be  erected,  made  or  set  up.  The  lessee,  during  the  term,  erected  upon  the 
demised  premises  a  green-house  built  of  wood,  on  a  frame  fixed  upon  a 
plank  of  wood  called  a  plate,  which  was  laid  upon  mortar  placed  in  the 
indents  of  dwarf  walls  erected  for  the  front  and  sides,  the  back  being 
formed  by  an  old  wall.  No  holes  were  made  in  any  part  of  the  walls,  the 
green-house  being  erected  with  a  view  to  removal.  Before  the  termina- 
tion of  the  term,  the  lessee  removed  this  green-house,  leaving  the  walls 
and  ground  flues  and  doing  no  injury  to  the  premises.  Held,  that  the 
green-house  was  an  erection  and  improvement  within  the  meaning  of  the 
covenant.  Coltman  and  Erskine,  JJ.,  also  expressed  the  opinion  that  it 
•was  a  fixture. 

So,  a  tenant  of  a  house  covenanting  to  repair  and  keep  in  repair  the 
premises  and  all  erections,  buildings  and  improvements  which  might  be 
erected  thereon  during  the  term,  and  to  yield  up  the  same  in  good  and 
sufficient  repair,  may  not  remove  a  veranda  erected  by  him  during  the 
term,  the  lower  part  of  which  is  attached  to  posts  fixed  in  the  ground. 
Penry  v.  Brown,  2  Stark.,  403   (1818). 

So,  where  a  lease  contained  a  covenant  at  the  expiration  of  the  term  to 

244 


CHAP.  IV.]  COVENANTS  TO  REPAIR,  ETC.  *166 

yield  up  the  premises,  "together  -with  all  wainscots,  windows,  shutters, 
fastenings,  etc.,  and  other  things  -which  then  were,  or  thereafter  should 
be  thereto  affixed  or  belonging  (looking-glasses  and  furniture  excepted) ; 
and  together  also  with  all  sheds  and  other  erections,  buildings  and  improve- 
ments which  should  be  erected,  etc.,  upon  said  demised  premises,  in  good 
repair,"  etc.,  and  an  assignee  of  the  lease  removed  the  ordinary  shop  sash 
window  and  put  in  its  place  a  plate-glass  shop  front  or  window,  which  was 
brought  to  the  house  completely  made  and  secured  in  its  place  by  wooden 
wedges,  no  screws,  nails,  or  glue  being  used  in  fastening  it  to  its  place, 
and  it  being  capable  of  being  removed  entire  by  removing  the  wedges.  Held, 
that  though  not  a  fixture  in  the  ordinary  sense,  yet  if  not  a  window  belong- 
ing to  the  demised  premises,  within  the  meaning  of  the  covenant,  it  was 
at  all  events  an  improvement  and  not  removable.  Haslett  v.  Burt,  18 
C.  B.,  893  (1856);  s.  c,  2  Jur.  (N.  S.),  974,  25  L.  J.,  C.  P.,  295;  affirm- 
ing S.  C,  in  C.  P.,  18  C.  B.,  162;  25  L.  J.,  C.  P.,  201;  36  Eng.  L.  &  Eq., 
276. 

So,  a  steam  engine  fastened  to  a  frame  of  timber  bolted  or  spiked  to 
timbers  bedded  in  the  ground,  used  in  working  a  quartz  ledge,  has  been 
held,  to  be  included  within  the  stipulation  in  a  lease  that  improvements  that 
may  be  put  up  on  the  ground  for  working  the  lead  shall  go  to  the  lessor  on 
the  termination  of  the  lease  if  the  rent  is  not  paid,  or  if  lessee  declines  to 
purchase  the  premises  in  accordance  with  a  stipulation  therefor  in  the  lease. 
Merritt  v.  Judd,  14  Cal.,  59  (1859).  See,  also,  Gett  v.  McManus,  47  Cal., 
56  (1873).  In  Merritt  v.  Judd  it  was  also  held,  that  the  lessor's  right  to 
the  fixture  was  not  destroyed  by  the  tenant's  contracting  to  purchase  by 
taking  a  bond  for  title  on  payment  of  the  purchase  money,  which,  however, 
he  failed  to  pay. 

See,  however,  Lemar  v.  Miles,  4  Watts,  330  (1835),  where  the  opinion 
•was  expressed  that  "metals  and  improvements"  did  not  include  an  article 
80  decidedly  personal  as  an  engine. 

But  where  tenants  covenanted  to  make  "alterations,  additions  and  im- 
provements of  a  permanent  character"  upon  the  demised  premises  to  the 
value  of  at  least  $1,500,  "and  to  introduce  machinery  necessary  to  the  pur- 
poses of  the  business,"  "the  permanent  additions  and  improvements  to 
remain  on  the  property  at  the  expiration  of  this  lease,  and  to  belong  to  the 
owners  of  the  fee  of  the  said  premises; "  and  the  tenants  put  up  a  building 
twenty-four  feet  by  sixty,  three  stories  high  costing  $2,200,  and  also  an 
engine  screwed  into  a  separate  foundation,  and  otherwise  fastened  to  the 
building,  a  Ijoiler  outside  the  main  buil<ling,  shafting  and  other  articles. 
Held,  that  the  building  satisfied  the  covenant,  and  that  the  engine,  boiler, 
etc.,  were  trade  fixtures  removable  by  the  tenant  during  his  term,  and 
hence  subject  to  sale  on  execution  against  him,  and  removable  by  the  pur- 
chaser during  the  term.  Ilcy  v.  Hruiior,  Gl  Penn.  St.,  87  (1869).  See, 
also.  Birch  v.  Dawson,  6  C.  &  P.,  658  (1834)  ;  s.  C,  2  Ad,  &  E.,  37;  Bidder 
V.  Trinidad  Petroleum  Co.,  17  W.  R.,  153  (1868).  In  the  case  last  cited, 
an  agreement  was  made  bctwoon  the  plaJTitiff  and  the  dofoiidant  company 
to  grant  them  a  lease  of  certain  land  as  soon  as  they  had  expended  3000L 

245 


*166  THE  L.VW  OP  FIXTURES.  [CHAP.  IV. 

"in  the  erection  of  permanent  and  substantial  brick  or  stone  and  slated, 
or  brick  or  stone  and  tiled  buildings  and  works,  such  as  are  usually  erected 
for  the  distillation  of  oil, ' '  and  it  was  also  provided  that  the  lease  should 
contain  a  covenant  to  cover  in  the  said  "erections  and  buildings"  when 
necessary;  the  lease  was  also  to  contain  a  covenant  to  keep  all  the  erec- 
tions and  buildings  for  the  time  being  standing  on  said  lands  in  good 
repair  during  all  said  term,  and  to  deliver  up  the  demised  premises  at  the 
end  of  the  term.  Held,  that  "erections"  must  mean  other  things  than 
mere  brick  or  stone  buildings,  and  included  cisterns  bricked  up  to  the 
brim. 

[In  Parker  v.  Wulstein,  48  N.  J.  Eq.,  94  (1891),  shelves  nailed  to  the 
walls  and  supported  by  counters,  a  furnace  and  flues,  and  awnings,  al- 
though easily  removable,  and  probably  not  fixtures,  were  held  to  be  im- 
provements; and,  under  a  stipulation  in  the  lease,  to  belong  to  the  landlord. 
Said  Bird,  V,  C. :  "  The  word  *  improvement '  may  be  said  to  compre- 
hend everything  that  tends  to  add  to  the  value  or  convenience  of  a  building 
or  place  of  business,  whether  it  be  a  store,  manufacturing  establishment, 
warehouse  or  farming  premises.  It  certainly  includes  repairs  of  every 
description.  It  necessarily  includes  much  more  than  the  term  'fixtures.' 
Indeed,  so  far  as  I  am  able  to  understand,  it  is  difficult  to  conceive  any 
additions  made  to  a  building  by  a  tenant  for  his  own  convenience  in  the 
conduct  of  the  business  which  may  not  properly  be  included  in  the  term 
'improvements.'  "  See,  further,  as  to  the  term  "improvements,"  Lake 
Superior  Iron  Co.  v.  McCann,  86  Mich.,  106,  111  (1891)  ;  Hopkins  v.  Gil- 
man,  47  Wis.,  581  (1879);  Poertner  v.  Kussel,  33  Wis.,  193  (1873);  and, 
ante,  p.  *7.] 

[Stalls  or  partitions  affixed  by  screws,  cleats  ani  slides  in  a  shed  are 
"improvements"  within  a  covenant.  Lesser  v.  Eayner,  47  N.  Y.  Supp., 
1102  (1897).] 

[Where  a  tenant  was  to  do  repairs,  but  to  be  paid  for  "permanenta 
and  betterments,"  held,  that  a  picket-fence  was  a  permanent  improvement. 
Wisehart  v.  Grose,  71  Ind.,  260,  263  (1880).] 

[Where  a  lease  provided  that  "alterations  and  improvements"  were 
not  to  be  removed,  a  boiler  costing  four  thousand  dollars  comes  within 
that  description;  and  a  subsequent  parol  license  to  remove  it  must  be  very 
clearly  established.     Agnew  v.  Whitley,   10  Phila.,   77    (1873).] 

[Where  a  lease  provided  that  whatever  alterations  and  improvements 
were  made  by  the  tenant  should  become  the  property  of  the  landlord,  and 
the  tenant  put  in  a  paneled  mahogany  ceiling  connected  with  the  bar 
fixtures  and  side  walls  so  as  to  constitute  one  piece,  and  also  put  in  a 
marble  floor  and  toilet  fixtures,  with  marble  slabs  and  platforms,  the 
court  held  that  while  the  tenant  might  ordinarily  have  removed  the  bar 
fixtures,  he  could  not  do  so  in  this  case,  as  he  had  made  them  a  part 
of  the  ceiling  and  wainscoting,  which,  under  the  covenant,  were  per- 
manent improvements.     Center  v.  Everard,  43  N.  Y.  Supp.,  416    (1897).] 

[Where  a  lease  provides  that  "alterations  and  improvements"  made 
by  the  tenant  shall  belong  to  the  landlord,  and  the  landlord  consents  to 

246 


CHAP.   IV.]  COVENANTS  TO  REPAIR,  ETC.  *166 

a  sale  of  certain  fixtures  annexed  by  the  tenant,  this  shows  that  the 
parties  have  not  classed  those  fixtures  as  ' '  alterations  and  improvements. ' ' 
Whitney  v.  Shippen,  89  Pa.  St.,  22,  26    (1879).] 

[A  lessee  covenanted  to  leave  "any  alterations,  repairs  or  improve- 
ments." He  bought  a  set  of  bar  furniture;  and,  to  secure  payment  of  the 
purchase  price,  gave  a  chattel  mortgage  thereon  and  on  the  chandeliers,  gas 
and  electric  light  fixtures  already  upon  the  premises.  The  bar  furniture  was 
afterwards  afiixed  by  screws,  and  holes  were  cut  in  the  floor  to  let  pipes 
through  and  the  pipes  were  attached  to  the  bars,  but  all  of  the  articles 
were  stock  articles,  and  could  be  removed  without  serious  damage  to  the 
freehold.  Held,  that  the  bar  fixtures  were  covered  by  the  mortgage,  and 
not  by  the  covenant  in  the  lease,  but  otherwise  as  to  the  gas  and  electric 
light  fixtures.  An  improvement  from  its  very  nature  becomes  a  part  of  the 
realty,  as  a  house.  It  is  done  to  the  realty.  A  fixture  retains  some  of  the 
essential  incidents  of  a  chattel  though  annexed  to  the  realty.  Said  Grey, 
v.  C. :  "The  presence  in  the  saloon  of  the  bars  and  their  equipment  is 
an  improvement  in  the  same  sense  that  the  room  is  improved  by  the 
presence  of  the  chairs,  tables  and  carpets. ' '  Ames  v.  Trenton  Brewing 
Co.,  56  N.  J.  Eq.,  309   (1897),  aff'd  57  N.  J.  Eq.,  347   (1898).] 

[Where  a  tenant  purchases  the  fixtures  of  the  preceding  tenant,  and  the 
new  lease  contains  a  clause  that  all  improvements  put  upon  the  premises 
by  the  tenant  shall  be  left  for  the  benefit  of  his  landlord,  such  fixtures 
are  not  within  the  letter  nor  spirit  of  the  covenant,  as  they  were  not 
put  in  by  him,  but  were  his  personal  property  before  the  lease  was  made. 
"While  the  terms  'improvements  and  additions'  are  comprehensive,  they 
ordinarily  refer  to  changes  and  additions  made  to  the  freehold."  Smusch 
V.  Kohn,  49  N.  Y.  Supp.,  176,  178  (1898).] 

[A  lease  of  a  factory  contained  a  covenant  that  the  lessee  would  not 
make  any  alteration  without  the  consent  of  the  landlord  under  penalty  of 
forfeiture.  The  engine  becoming  worn  out,  the  lessee  substituted  a  new 
one  without  the  consent  of  the  landlord.  Held,  that  this  was  not  an 
alteration,  and  the  lessee  could  remove  it.  Andrews  v.  Day  Button  Co., 
132  N.  Y.,  348  (1892),  aff 'g  62  Supr.  Ct.  (55  Hun),  494  (1890).] 

[If  a  lessee  of  land  on  the  shore  of  the  ocean  builds  a  wharf  and 
chute,  part  being  upon  the  demised  premises  and  part  oxtonding  out  into 
the  ocean,  such  portion  of  the  wharf  as  extends  below  high  water  mark 
is  neither  an  improvement,  nor  affixed  to  nor  appurtenant  to  the  land,  and 
does  not  become  the  property  of  the  lessor  at  the  expiration  of  the  term 
under  a  provision  in  the  lease  that  the  land  is  to  bo  surrendered  with 
improvements  erected  thereon.     Coburn  v.  Ames,  52  Cal.,  385,  395   (1877).] 

[One  clause  in  a  lease  gave  the  lessee  the  right  to  remove  buildings 
erected  by  liiin,  and  another  clause  provided  that  all  alterations  and 
additions  made  to  a  frame  building  then  on  the  premises  should  inure  to 
the  benefit  of  the  lessor.  The  lessee  fitted  up  this  building  as  a  factory, 
and  at  one  end  built  a  brick  building  to  acconunodate  the  engine  and 
boiler  which  furnished  the  motive  power  for  tlio  factory.  The  two  build- 
ings were  not  connected,  but  their  roofs  touched;  a  doorway  waa  cut  in  the 

247 


*167  THE  lAW  OF  FIXTURES.  [CHAP.  IV. 

[*167]  The  *mere  removal  and  sale,  however,  by  a  tenant  during 
his  term,  of  removable  fixtui-es  (not  removed  in  such  a  way  as 
to  amount  to  a  non-repair)  which  he  does  not  immediately 
restore,  but  which  might  be  restored  before  the  end  of  the  term, 
[*168]  *is  not  a  breach  of  a  covenant  to  repair,  uphold  and 
amend  the  demised  premises,  and  to  deliver  them  up  at  the  end 
of  the  term,  together  with  all  improvements,  and  things  fixed 
and  fastened  or  to  be  fixed  and  fastened  thereto.^ 
[*169]  *The  construction  to  be  placed  upon  such  covenants  is 
sometimes  determined  by  an  application  of  the  principle  that 
general  words  are  restricted  by  the  particular  Avords  which  pre- 
cede them,  and  come  wnthin  the  rule  by  which  they  ought  to 
be  construed  as  applicable  to  persons  and  things  ejusdem  gen- 
eris.^ 

This  rule  was  applied  in  the  decision  of  Bishop  v.  Elliot,^ 
[*170]  *by  the  Court  of  Exchequer  Chamber.  In  that  case  C. 
demised  to  E.,  the  plaintiff,  an  unfinished  messuage  for  a  long 
term  of  years.  The  indenture  contained  a  covenant  by  the 
plaintiff  that  at  the  expiration  of  his  term  he  would  deliver  up 

old  building  opposite  a  door  in  the  new  building;  and  the  old  building 
was  not  clapboarded  next  to  the  new  building.  The  question  being  raised 
as  to  which  clause  covered  the  new  building,  it  was  held  that  the  lessee 
had  a  right  to  remove  it.     Smith  v.  Whitney,  147  Mass.,  479   (1888).] 

[Where  a  lease  provided  for  the  surrender  of  the  premises  "in  as  good 
state  and  condition  as  reasonable  wear  and  use  thereof  will  permit,"  and 
also  permitted  the  making  of  alterations  which  would  convert  a  dwelling- 
house  into  a  shop,  this  did  not  prevent  the  removal  by  the  tenant  of  shop 
fittings.     Laidlaw  v.  Taylor,  2  Nova  S.  L,  E.,  155    (1881).] 

iDoe  ex  dem.  Burrell  v.  Davis,  15  Jur.,  155  (1851). 

[A  provision  in  a  ninety-five  year  lease  that  a  building  on  the  premises 
demised  should  be  taken  "as  part  and  parcel  of  the  realty  and  in  no  case 
to  be  removed  therefrom,"  and  that  the  lessee  should  keep  the  premises  in 
good  repair,  does  not  require  the  lessee  to  keep  and  maintain  the  building 
just  as  it  was;  and  an  alteration  making  a  substantially  new,  larger  and 
more  valuable  building  upon  the  same  foundation  is  not  a  violation  of  the 
covenant.     Hawes  v.  Favor,  161  lU.,  440,  447   (1896).] 

[See  Ferguson  v.  Paul  (1885),  22  Scot.  Law  Eep.,  809,  where  it  was 
considered  that  a  clause  In  a  lease  requiring  the  tenant  to  replace  trees 
removed  by  him,  did  not  require  him  to  replace  them  immediately.] 

2  See  Broom  Leg.  Max.,  588,  where  the  maxim,  Noscitur  a  sociis,  is  con- 
sidered. 

3  11  Exch.,  113  (1855);  s.  C,  1  Jur.  (N.  S.),  962;  24  L.  J.,  Exch.,  229. 
See  S.  C,  in  Court  of  Exchequer,  10  Exch.,  496;  24  L,  J.,  Exch.,  33. 

248 


CHAP.  IV.]  COVENANTS  TO  REPAIR,  ETC.  *171 

the  demised  premises  unto  C.  "together  with  all  locks,  keys, 
bars,  bolts,  marble  and  other  chimney-pieces,  foot  paces,  slabs, 
and  other  fixtures  and  articles  in  the  nature  of  fixtures  which 
shall  at  any  time  during  the  said  term  be  fixed  or  fastened  to 
the  said  demised  premises  or  be  thereto  belonging."    The  plain- 
tiff went  into  possession  of,  completed  and  fitted  up  the  mes- 
suage with  things  necessary  for  carrying  on  the  business  of  a 
tavern-keeper  and  licensed  victualer,  and  for  that  purpose  put 
in  and  fixed  thereto  certain  fixtures  of  the  description  known 
as  trade  and  tenant's  fixtures.     B.,  the  defendant,  afterwards 
contracted  with  the  plaintiff'  for  an  under-lease  of  the  premises 
and  to  purchase  the  furniture,  fixtures,  etc.,  at  a  valuation.    In 
pursuance  of  this  agreement  plaintiff  executed  to  defendant  an 
under-lease  containing  a  covenant  on  the  part  of  the  defendant 
in  the  same  words  as  the  above  covenant  by  the  plaintiff  in  the 
original  lease.     The  defendant  then  entered  into  possession  and 
the  fixtures  having  been  valued,  a  question  arose  between  the 
parties  whether  the  plaintiff'  had  a  right  or  title  to  sell  the 
tenant's   or  trade  fixtures,   and  whether  the   defendant   upon 
paying  therefor  would  have  good  title  thereto  and  be  entitled 
during  the   continuance   of  the  lease   or   at  its   expiration   to 
remove  them  without  being  guilty  of  a  breach  of  covenant  or 
being  liable  to  plaintiff's  lessor.    The  defendant  contended  that 
among  the  articles  enumerated  in  the  covenant  were  some  ten- 
ant's fixtures,  while  on  the  part  of  the  plaintiff  it  was  insisted 
that  the  enumerated  articles  were  all  landlord's  fixtures  by  the 
general  law  not  removable  by  the  tenant ;  and  that  such  words 
operating  as  a  limitation  upon  tbe  general  words  connected  with 
them  in  the  same  clause,  "other  fixtui-es"  must  be  taken  to  mean 
"other  fixtures  of  a  like  nature,"  and  hence  that  the  covenant 
did  not  include  tenant's  or  trade  fixtures;  and  ol"  this  opinion 
were  the  court.    As  to  the  locks  and  keys,  bolts  and  bars,  it  was 
conceded  that  the  tenant  could  not  remove  them ;  and  as  to  the 
foot-paces  or  *slabs  there  could  be  no  question,  if  it  ap-  f*1711 
peared  that  the  marble  and  other  chimney-pioces  to  which  thoy 
were  appendages  were  also  of  the  same  class.    The  case  therefore 
turned  upon  the  finest  ion  whether  chimney-pieces  might  be  re- 
moved by  the  tenant  during  his  term.     This  question  was  fully 
discussed  by  the  court  and  the  eonclusion  arrived  at,  that  the 
distinction  as  to  whether  removable  or  not  is  whether  put  up  for 

249 


*171  THE  LAW  OP  FIXTURES.  [CIIAP.  IV. 

purposes  of  ornament  or  not.  Applying:  this  distinction  to  the 
words  of  the  covenant,  it  was  hekl,  that  the  words  "marble  and 
other  chimney-pieces,"  placed  as  they  were  between  "locks,  keys, 
bolts,  bars,"  and  "foot-paces  and  slabs,"  the  covenant  having 
reference  to  a  public  house,  did  not  relate  to  the  class  of  chimney- 
pieces  removable  by  a  tenant,  but  like  the  rest  of  the  enumerated 
particulars  with  which  they  were  classed,  to  such  as  were  com- 
monly called  landlord's  fixtures,  and  therefore  the  plaintiff  was 
entitled  to  judgment  for  the  whole  sum  claimed.  The  rule  "has 
also  been  applied  in  other  cases.^ 

iSee  Sumner  v.  Broniilow,  34  L.  J.,  Q.  B.,  130  (1865);  s.  c,  11  Jur, 
(N.  S.),  481.  lu  this  case  the  lessees  covenanted  to  erect  salt-works  on  the 
demised  land,  and  at  the  end  of  the  term  to  yield  up  possession  of  the 
premises,  and  also  to  leave  at  the  disposal  of  the  lessors  all  the  fixed  ma- 
terials of  all  kinds  that  should  be  used  in  or  about  the  said  intended 
wychhouses  or  salt-works,  or  in  any  way  relating  thereto,  except  the  salt- 
pans and  other  movable  articles  made  use  of  at  all  or  any  of  the  said 
wychhouses  and  salt-works.  Afterwards  the  defendants,  the  representatives 
of  the  original  lessees,  surrendered  their  term  and  took  a  new  lease  of  the 
premises,  covenanting  at  the  end  or  sooner  determination  of  their  term 
to  yield  up  the  premises  with  all  erections,  buildings  and  improvements 
made  thereon,  together,  also,  with  the  present  brine-cisterns,  and  all  doors, 
shutters,  hurdles,  roofs,  and  roof-supporters,  coal-deposits,  salt-stages, 
•weighing-machines,  coal-quays,  and  all  flues  in  the  refined  salt  stoves,  and 
also  all  other  fixtures  and  appurtenances  of  what  nature  or  kind  soever, 
which  should  be  used  in  or  about  the  said  counting-house,  cottages,  and 
other  buildings,  wychhouses  or  salt-works,  or  in  anywise  relating  thereto, 
in  good  repair,  etc. ;  but  as  to  the  salt-pans  and  other  articles  made  use 
of  at  all  or  any  of  the  said  wychhouses,  pan-houses  or  salt-works,  and 
belonging  to  the  lessees,  they  were  at  liberty  to  remove  them,  making 
good  the  damage  to  the  premises  sustained  thereby,  subject  to  an  option 
of  the  lessor  to  purchase  the  salt-pans  and  other  movable  articles  used  in  or 
about  the  salt-works  and  premises.  Defendants  thereafter,  on  Dec.  13, 
1861,  underlet  the  premises  in  violation  of  the  terms  of  the  lease,  and 
plaintiffs,  after  demand  of  possession  on  the  23d  of  June,  1862,  on  the 
7th  of  July,  1862,  brought  ejectment.  Defendants,  between  Jan.  18,  1863, 
and  March  17,  1863,  pending  the  suit  and  before  judgment  removed  salt- 
pans and  other  trade  fixtures.  Held,  that  the  effect  of  the  covenant  was  to 
prevent  the  tenants  from  removing  landlord 's  fixtures,  but  that  tenant 's 
and  trade  fixtures  might  be  removed,  and  that  they  were  entitled  to  a 
reasonable  time  after  demand  of  possession  for  that  purpose.  Cockburn, 
C.  .T.,  in  delivering  his  opinion  referring  to  the  words  "movable  articles," 
said:  "By  the  words  'movable  articles'  "  [occurring  in  the  first  lease], 
"I  think  must  be  intended  articles  which  might  be  removed  by  the  tenant, 

250 


CHAP.   IV.]  COVENANTS  TO  REPAIR,  ETC.  *171 

notwithstanding  that  they  had  been  aflaxed  to  the  building,  because  there 
would  have  been  no  occasion  to  reserve  a  right  to  take  away  mere  chat- 
tels." See,  also,  Dumergue  v.  Kumsey,  2  H.  &  C,  777  (1863);  s.  c,  12 
W.  R.,  205;  33  L.  J.  Exch.,  88;  10  Jur.  (N.  S.),  155;  9  L.  T.  (N.  S.), 
775. 

In  Foley  v.  Addenbrooke,  13  M.  &  W.,  174  (1844)  ;  s.  c,  14  L.  J.  (N.  S.), 
Exch.,  169,  the  lease  contained  a  covenant  on  the  part  of  the  lessee  to  repair 
and  yield  up  in  repair  the  furnaces,  fire-engines,  iron-works,  dwelling- 
houses  and  all  other  erections,  buildings,  improvements  and  alterations  to 
be  thereafter  erected,  built  or  set  up  (except  the  iron-work  castings,  rail- 
ways, gins,  wimseys,  machines,  and  the  movable  implements  and  materials 
used  in  or  about  the  said  furnaces,  fire-engines,  iron-works,  stone-pits  and 
premises).  There  was  also  a  power  given  to  the  lessors  to  purchase  those 
articles  upon  giving  a  certain  notice  before  the  expiration  of  the  lease. 
Eeld,  that  the  rule  as  to  what  should  be  removed  by  the  lessee  was,  "that 
whatever  was  in  the  nature  of  a  machine  or  part  of  a  machine,  as  iron- 
work or  iron  castings  or  railways,  gins,  or  movable  implements  or  materials, 
the  defendants  [lessees]  had  a  right  to  remove;  that  whatever  was  in  the 
nature  of  building  or  support  of  buildings,  although  made  of  iron,  the 
defendants  had  not  a  right  to  remove."  Under  this  rule  the  boilers, 
boiler-grates,  castings  and  iron-work  of  the  engine  and  regulator,  and  of 
the  spring-beams,  hot-air  apparatus,  piping,  cupola  and  blast-pipes  working 
it,  refineries  and  blast-pipes  working  them,  puddling-furnaces  and  mill- 
furnaces,  holding-down  pins  and  bed-plates,  gasometers  and  apparatus, 
were  htld,  to  be  removable;  but  not  hoops,  bearers,  and  brickstaffs  being 
iron-work,  not  in  the  nature  of  a  machine,  substituted  for  brick-work  for 
greater  strength,  oak  from  forge-hammer  foundation,  buildings  and  cast- 
iron  columns  supporting  a  building. 

[Sec,  also,  as  to  the  rule  stated  in  the  text,  Deishler  v.  Golbaugh,  2 
Ky.  Law  Rep.,  231  (1881)  ;  Metropolitan  Concert  Co.  v.  Sperry,  9  N.  Y. 
St.  Rep.,  342,  344  (1887),  aff'd  120  N.  Y.,  620  (1890)  ;  Ex  parte  D 'Eresby 
(1881),  15  Co.  Ct.  &  Bankr.  Cas.,  163,  reversing  Ex  parte  Sheen  (1880), 
15  Co.  Ct.  &  Bankr.  Cas.,  39.] 

[A  provision  "that  all  improvements  placed  in  said  buildings  by  the 
lessees,  viz.,  elevators,  boilers,  heating  apparatus,  etc.,  shall  be  deemed 
fixtures  not  to  be  removed,"  does  not  cover  an  electric  lighting  appa- 
ratus. The  word  ' '  improvements ' '  is  limited  by  the  videlicet  clause 
which  follows,  and  the  "etc."  does  not  enlarge  its  scope.  Loeser  v.  Liebe- 
mann,   14   N.  Y.  Supp.,   569,   570    (1891).] 

[The  rule  of  ejundem  generis  was  hold  to  exclude  trade  fixtures  in  Cub- 
bins  V.  Ayrcs,  72  Tcnn.,  329,  333  (1880)  ;  Argles  v.  McMath,  26  Ont., 
2:4,  2.'59  (1895),  aff'd  23  Ont.  App.,  44,  47  (1896);  Lambourn  v.  McLel- 
lan    [1903],  2  Ch.,  268,  reversing   [1903],  1   Ch.,  806.] 

[A  lease  was  made  of  a  seam  of  coal,  coke-ovens  and  improvements, 
and  provided  that  any  iniprovpnu'iits  made  by  tlio  lessee  were  to  remain. 
The  lessor  also  sold  to  the  lessee  the  mules,  mine-wagons,  and  mine-rails, 
which  were  in  the  mine  at  the  date  of  the  lease,  and  these  were  expressly 

251 


*172  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

[*172]    *Effect  of  Contracts  entered  into  suhscquenlly  to  the 

Original  Demise. 

Agreements  modifying  or  restraining  the  right  of  a  tenant 
to  remove  fixtures,  entered  into  subsequently  to  the  original 
demise,  may  be  by  an  independent  contract,  or  by  the  terms  of 
a  subsequent  demise,  or  renewal  of  the  original  lease.  The 
right  of  a  tenant  to  remove  fixtures  may  of  course  be  taken 
away  by  an  express  contract  for  that  purpose;  and  contracts 
entered   into   subsequently   to   the   original   demise   by   a   fair 

excluded  from  the  lease.  Subsequently  the  lessee  substituted  a  "rope 
haulage  system"  in  place  of  mule-power.  Held,  that  the  haulage  system 
could  be  removed  by  the  lessee,  as  the  word  "improvements,"  as  used  in 
the  lease,  was  clearly  not  intended  to  apply  to  appliances  used  in  remov- 
ing coal.     Beech  Grove  Coal  Co.  v.  Mitchell,  193  Pa.  St.,  112   (1899).] 

[A  covenant  provided  that  "the  tenant  shall  also  leave  gratis  for  the 
landlord  or  his  incoming  tenant  all  the  roots  remaijiing  unconsumed  in 
the  ground,  and  also  all  improvements  made  by  the  tenant,  and  all  culti- 
vations, dressings,  and  manures,  in  consideration  of  no  claim  being  made 
by  the  landlord  for  similar  matters  on  the  tenant  now  entering."  Held, 
that  the  word  "improvements"  did  not  cover  glass  houses,  as  it  is 
qualified  by  the  subsequent  words  "similar  matters"  to  mean  tillages, 
etc.,  in  respect  to  which  the  landlord  made  no  claim.  Mears  v.  Callender 
[1901],  2  Ch.,  388,  397.] 

See,  however,  Haley  v.  Hammersley,  3  De  G.  F.  &  J.,  587  (1861)  ;  Wilson 
V.  Whateley,  30  L.  J.  Chanc,  673   (1860);  s.  c,  7  Jur.   (N.  S.),  908;  3  L. 
T.  (N.  S.),  617;  1  John.  &  H.,  436.     In  the  case  last  named  the  lease  con- 
tained a  covenant  by  the  lessee  at  the  end  of  his   term  to  yield  up   the 
premises  together  with   the   fixtures  and   things   specified  in  the   schedule, 
and    also    together    with    all    doors,    wainscots,    shelves,    presses,    dressers, 
drawers,  locks,  keys,  bolts,  bars,  bell-staples,  hinges,  hearths,  marble  and 
other  chimney  pieces,   mantel-pieces  and  chimney-jambs,   foot-paces,  slabs, 
carvings,   glazed  windows,  window-shutters,   partitions,   sinks,  water-closets 
and   cisterns,   and   things   thereunto   belonging,   pumps,   pipes,   posts,  poles 
and    rails,    water-tanks    and    other    additions,    improvements,    fixtures    and 
things   which    then   were,    and   which   at   any   time   during   the    said   term 
should  be,  in  any  way  fixed  or  fastened  to,  or  sot  up  in,  or  upon  the  said 
demised    premises    or    any    part    thereof,    in    good    order    and    condition." 
With  reference  to  this  covenant,  Wood,  V.  C,  expressed  the  opinion  as  to 
tenant's  fixtures  not  specified  in  the  schedule  to  the  lease,  that  the  words 
"other   additions,   improvements,   fixtures   and   things"   could   not   be   tied 
down  to  the  articles  ejusdem  generis  preceding,  and  held,  that  the  lessee's 
title  to  such  tenant's  fixtures  was  as  between  vendor  and  purchaser  of  the 
term    and    tenant's    fixtures,    too    doubtful    to    be    forced    upon    the    pur- 
chaser. 

■     252 


CHAP.   IV.]  CONTRACTS  SUBSEQUENT  TO  DEMISE,  *173 

*constriiction  thereof  sometimes  have  that  effect,  al-  [*173] 
though  no  mention  is  made  therein  of  fixtures  or  other  annex- 
ations. 

This  is  well  exemplified  by  the  case  of  Fitzherbert  v.  Shaw/ 
where  the  purchaser  of  lands  having  brought  ejectment  against 
a  tenant  from  year  to  year  who  was  in  possession  at  the  time 
of  his  purchase,  the  parties  entered  into  an  agreement,  among 
other  things,  that  judgment  should- be  signed  for  the  plaintiff 
in  ejectment  with  a  stay  of  execution  till  the  ^Michaelmas 
following,  till  which  time  the  defendant  was  to  continue  in  pos- 
session. In  this  agreement  no  mention  was  made  of  any  build- 
ings or  fixtures.  Between  the  time  of  entering  into  the  agree- 
ment and  the  ensuing  ]\Iichaelmas,  the  defendant  took  away 
several  things  from  the  premises,  among  which  were  a  wooden 
stable,  which  stood  on  blocks  or  rollers,  which  he  had  before 
removed  from  an  estate  of  his  own  adjoining  to  the  premises  in 
question,  a  shed  which  he  had  himself  built  on  brick-work, 
and  some  posts  and  rails  which  he  had  also  erected;,  and  for 
this  an  action  on  the  case  in  the  nature  of  waste  was  brought. 
Mr.  Justice  Gould  was  of  opinion  at  the  trial  that  the  defend- 
*ant  would  clearly  have  been  entitled  to  take  away  said  [*174] 
articles,  if  he  had  done  it  during  the  continuance  of  his  term 
from  year  to  year,  but  that  by  the  agreement  the  parties  had 
made  a  new  contract,  which  put  an  end  to  the  term.  And  the 
Court  of  Commx3n  Pleas,  without  going  into  the  general  question 
as  to  the  right  of  a  tenant  to  remove  buildings,  etc.,  held  that 
the  fair  interpretation  of  the  agreement  was  that  as  the  defend- 
ant was  to  remain  in  possession  for  a  certain  time  after  the 
agreement  was  entered  into  and  judgment  signed  in  the  eject- 
ment, he  should  do  no  act  in  the  meantime  to  alter  the  prem- 
ises; but  should  deliver  thorn  up  in  the  same  situation  as  they 
were  in  when  the  agreement  was  made  and  the  judgment 
signed. 

The  case  of  Heap  v.  Barton-  was  very  similar  in  its  facts  to 

11  H.  P.].,  2r;S   (1780). 

2  12  C.  B.,  274  (18-^2);  s.  C,  IG  Jur.,  S91 ;  21  L.  J.  (N.  S.),  C.  T.,  ir,3; 
10  Eng.  L.  &  T.-].,  499.  In  this  case  tbe  contract  was  as  follows:  "In 
consideration  of  Messrs.  John  &  George  Barton  not  appearing  to  this 
action,  I  hereby  nii<lortake  not  to  issue  a  writ  of  possession  until  after 
the  25th   day   of   March  next." 

253 


*175  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

that  of  Fitzherbert  v.  Shaw,  above  cited,  which  was  regarded 
by  the  court  as  decisive  of  the  question.  In  delivering  his  opin- 
ion in  the  case  Jervis,  C,  J.,  observed  that  "the  intention  evi- 
dently was,  that  the  plaintiff  should  suspend  his  remedy  for 
obtaining  possession  of  the  premises  until  the  25th  of  March, 
in  consideration  of  the  defendants,  then  giving  them  up  in  the 
same  condition  as  they  were  in  at  the  time  of  making  that 
agreement.  If  the  tenants  meant  to  avail  themselves  of  their 
continuance  in  possession  to  remove  the  fixtures,  they  should 
have  said  so."  The  doctrine  of  Fitzherbert  v.  Shaw  has  also 
been  recognized  and  approved  in  other  cases  and  may  be  re- 
garded as  well  settled.^ 

It  is  also  well  settled  that  if  a  tenant  having  the  right  to 
remove  fixtures  erected  by  him  on  the  demised  premises,  accepts 
a  new  lease  of  such  premises  without  reservation  or  mention 
of  any  claim  to  such  fixtures,  and  enters  upon  a  new  term 
[*175]  *thereunder,  the  right  of  removal  is  lost,  notwithstand- 
ing his  actual  possession  has  been  continuous.  In  such  a  case 
the  acceptance  of  a  new  lease  of  the  premises,  including  the  fix- 
tures, without  any  reservation  of  right  or  mention  of  any  claim 
to  the  fixtures  and  occupation  under  the  new  letting,  are  equiv- 
alent to  a  surrender  of  the  possession  to  the  landlord  at  the 
expiration  of  the  first  term.  The  tenant  is  in  under  a  new 
tenancy,  and  not  under  the  old;  and  the  rights  which  existed 
under  the  former  tenancy,  and  which  were  not  claimed  or  exer- 
cised, are  abandoned  as  effectually  as  if  the  tenant  had  actually 
removed  from  the  premises,  and  after  an  interval  of  time  longer 
or  shorter  had  taken  another  lease  and  returned  to  the  premises. 
A  lease  of  the  lands  and  premises  carries  Mdth  it  the  fixtures 
thereon,  and  by  accepting  such  a  lease  without  exception  or 
reservation,  the  tenant  takes  a  lease  of  the  lands  including  the 
fixtures  thereon,  acknowledges  the  title  of  the  landlord  to  both, 
and  is  estopped  from  controverting  it.^     And  in  such  a  case  a 

3  See  Loughran  v.  Eoss,  45  N.  Y.,  792,  795  (1871);  Merritt  v.  Judd,  14 
Cal.,  59,  71  (1859);  Deeble  v.  McMullcn,  8  Ir.  Com.  Law,  355  (1857); 
also  the  cases  cited  in  the  following  notes.  See,  however,  Dean  v.  Allalley, 
3  Esp.,  11   (1799). 

4  Loughran  v.  Ross,  45  N.  Y.,  792  (1871);  Merritt  v.  Judd,  14  Cal.,  59 
(1859);  Jungerman  v.  Bovee,  19  Cal.,  354  (1861);  Earl  of  Mansfield  v. 
Blackburne,  6  Bing.  N.  C,  426  (1840);  s.  c,  8  Scott,  720;  Abell  v.  Will- 

254 


CHAP.  IV.]  CONTRACTS  SUBSEQUENT  TO  DEMISE.  *175 

iams,  3  Daly,  17  (1869).  See,  also,  Shepard  v.  Spaulding,  4  Met.,  416 
(1842)  ;  Philipson  v.  Mullanphy,  1  Mo.,  620  (1826) ;  Van  Kensselaer  v. 
Penniman,  6  Wend.,  569  (1831).  [Marks  v.  Eyan,  63  Cal.,  107,  111 
(1883);  Hedderich  v.  Smith,  103  Ind.,  203  (1885);  Sanitary  Dist.  of 
Chicago  V.  Cook,  169  111.,  184,  190  (1897),  aff'g  67  111.  App.,  286  (1896); 
Gauggel  V.  Ainley,  83  111.  App.,  582,  586  (1898)  ;  Smyth  v.  Stoddard,  105 
III.  App.,  510,  518  (1903),  aflf 'd  203  111.,  424  (1903);  Bauernschmidt  Co. 
V.  McColgan,  89  Md.,  135,  139  (1899)  ;  Carlin  v.  Eitter,  68  Md.,  478 
(1888)  ;  Watriss  v.  First  Nat.  Bank,  124  Mass.,  571,  576  (1878)  ;  Mclver 
V.  Estabrook,  134  Mass.,  550  (1883)  ;  Champ  Spring  Co.  v.  B.  Roth  Tool 
Co.,  103  Mo.  App.,  103  (1903) ;  Anthony  v.  Eockefeller,  102  Mo.  App., 
326,  331  (1903) ;  Williams  v.  Lane,  62  Mo.  App.,  66,  68  (1895)  ;  Stephens 
V.  Ely,  162  N.  Y.,  79  (1900);  Talbot  v.  Cruger,  151  N.  Y.,  117,  120 
(1896),  aff'g  88  Supr.  Ct.  (81  Hun.),  504,  507  (1894);  Nieland  v.  Mahn- 
ken,  89  App.  Div.,  463,  464  (N.  Y.,  1903);  Hayes  v.  Schultz,  68  N.  Y. 
Supp.,  340  (1900) ;  Cook  v.  Scheid,  4  Weekly  Cin.  Law  Bui.,  1123  (Super., 
(1880)  ;  Spencer  v.  Commercial  Co.,  30  Wash.,  520  (1902)  ;  Orr  v.  Davis, 
17  N.  Z.,  106  (1898)  ;  Daly  v.  Marshall,  4  K  Z.  L.  E.,  Supr.  Ct.,  28,  34 
(1885);  see,  also,  Leman  v.  Best,  30  111.  App.,  323,  324  (1888);  Unz  v. 
Price,  22  Ky.  Law  Eep.,  791  (1900);  Bohn  v.  Hatch,  133  N.  Y.,  64,  69' 
(1892);  Stephens  v.  Ely,  14  App.  Div.,  202,  203  (N.  Y.,  1897);  Hertz- 
berg  V.  Witte,  22  Texas  Civ.  App.,  320,  321   (1899).] 

So,  where  by  an  agreement  dated  Oct.  6,  1843,  tenants  in  possession 
agreed  to  take  a  lease  of  a  mill  "with  the  steam-engine,  and  engine  and 
gas-houses,  outbuildings  and  appurtenances  to  the  same  belonging,  and  as 
the  same  are  now  respectively  occupied  by  them,  and  the  main  shafts  and 
going  gear  for  working  the  machinery  therein"  for  the  term  of  twenty- 
one  years  from  May,  1841,  and  on  settling  the  lease  after  a  decree  for 
specific  performance,  the  lessees  objected  to  a  demise  purporting  to  be  of 
the  mill  and  steam-engine,  etc.  (in  the  terms  above  stated),  on  the  ground 
that  it  would  pass  their  tenant's  fixtures  to  the  landlord,  and  insisted  on 
having  a  schedule  of  landlord's  fixtures,  and  sought  to  exclude  the  gas- 
works, it  was  held,  that  if  the  tenants  intended  to  treat  some  part  as  not 
the  landlord's  property,  they  should  have  introduced  the  exceptions  into 
the  contract,  and  the  court  refused  to  insert  either  the  schedule  or  an 
exception.  Sharp  v.  Milligan,  23  Beav.,  419  (1857) ;  s.  c,  under  the  style 
Thorpe  v.  Milligan,  5  W.  E.,  336. 

[A  lease  of  a  vacant  lot  contained  provisions  for  a  renewal  and  an 
option  to  purchase  by  the  lessee.  The  lessee  without  request  of  the  lessor 
built  a  synagogue,  and  the  lease  was  subsequently  renewed.  Upon  the 
lessor 's  death  his  executor  was  unable  to  convey,  as  the  lessor  had  only 
a  life  estate.  In  an  action  for  damages  for  breach  of  the  covenant  to 
convey,  held,  that  the  value  of  the  buildings  could  not  be  recovered,  as 
they  had  become  the  property  of  the  lessor  by  tlie  renewal.  Gcrbert  v. 
Trustees,  59  N.  J.  Law,  160,   186   (1896).] 

[A  trustee  in  bankruptcy  occupies  no  bettor  position  than  the  tenant. 
Van  Vleck  v.  White,  66  App.  Div.,  14,  17   (N.  Y.,  1901).] 

255 


*175  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

["Where  a  grantee  of  the  laud  has  paid  rent  for  stables  thereon  under 
the  belief  that  a  former  tenant  had  the  right  to  remove  them,  he  can, 
upon  discovering  his  mistake,  recover  the  money  so  paid.  Harper  v. 
Gaynor,  19  Vict.  L.  E.,  675   (1893).] 

[The  right  of  the  tenant,  under  his  lease,  to  a  building  erected  by 
him,  is  not  affected  by  a  renewal  of  his  lease  where  the  original  lease  pro- 
vides for  such  a  renewal.  Livingston  v.  SulzeY,  26  Supr.  Ct.  (19  Hun), 
375,   381    (N.   Y.,   1879).] 

[Where  a  land-owner  leases  the  premises  and,  at  the  same  time,  sells 
to  the  tenant  all  of  the  fixtures  thereon  empowering  him  to  remove  them 
and  agreeing  "not  to  regard  them  or  any  of  them  as  fixtures,"  a  new 
lease  taken  by  the  tenant  does  not  affect  his  right  of  removal,  as  the  pre- 
sumption that  the  annexed  articles  have  become  a  part  of  the  freehold  has 
been  overcome.     O'Brien  v.  Mueller,  96  Md.,  134   (1902).] 

[An  abatement  or  increase  of  rent  is  not  a  surrender  of  the  old  ten- 
ancy.   Prouguey  v.  Gurney,  37  Up.  Can.  Q.  B.,  347,  357  (1875).] 

However,  in  Devin  v.  Dougherty,  27  How.  Pr.,  455  (1864),  where  a 
butcher,  a  tenant  for  years,  during  his  first  term  erected  a  wooden  awning 
over  the  sidewalk  in  front  of  and  adjoining  the  building  for  the  purpose 
of  keeping  the  sun  off  from  his  vegetable  and  fruit  stand,  and  during  his 
original  term  took  a  new  lease  of  the  premises  containing  no  provision  as 
to  the  erection  already  made,  it  was  held,  that  his  right  of  removal  was  not 
affected  thereby.  This  case,  however,  seems  very  clearly  not  to  be  a  correct 
exposition  of  the  law  on  this  subject. 

[While  the  rule  stated  in  the  text  is  well  established  by  weight  of 
authority,  the  courts  seek  to  limit  its  injustice  in  every  way  possible,  as 
will  be  seen  by  some  of  the  cases  supra.  In  Bernheimer  v.  Adams,  70  App. 
Div.,  114  (1902),  aff'd  175  N.  Y.,  472  (1903),  it  is  said:  "The  law  does 
not  favor  forfeiture.  In  such  cases  it  lays  hold  of  slight  evidence  to  work 
a  waiver  or  estoppel."  In  this  case  the  landlord  claimed  the  fixtures  on 
the  ground  that  their  removal  would  injure  the  freehold,  and  he  was  not 
afterwards  allowed  to  invoke  the  rule  that  they  became  his  by  the  taking 
of  a  new  lease.  It  was  further  held  that  this  rule  must  be  limited  to 
articles  distinctively  realty,  and  incapable  of  removal  without  injury 
to  the  freehold;  and  taking  a  new  lease  before  the  expiration  of  a  former 
one  does  not  necessarily  conclusively  presume  the  surrender  of  the  former. 
See,  also,  Smusch  v.  Kohn,  49  N.  Y.  Supp.,  176,  177  (1898).  In  Chaffee 
V.  Fish,  2  Ohio  Dee.,  89  (1894),  a  lease  of  vacant  land  provided  that  the 
tenant  might  enclose  same  with  a  fence  to  keep  in  his  live  stock,  and 
at  the  expiration  of  the  lease  the  tenant  might  remove  the  fences.  A 
second  lease  was  taken,  which  contained  no  provision  as  to  removal.  The 
fence  was  a  light  affair  of  wire  and  slats  which  could  be  rolled  up,  and 
was  attached  to  small  posts  driven  into  the  ground.  Held,  that  the  intent 
of  the  parties  was  that  the  fence  should  be  temporary,  and  that  the  tenant 
had  a  right  to  remove  the  same.] 

[The  rule  that  a  tenant,  by  renewing  his  lease,  loses  his  right  to  remove 
fixtures  "must  yield  to  the  intention  of  the  parties,  to  the  lease  as  de- 

256 


CHAP.  IV,]  CONTRACTS  SUBSEQUENT  TO  DEMISE.  *176 

♦covenant  in  the  new  lease  to  surrender  the  premises  at  [*176] 
the  end  of  the  term  in  as  good  state  and  condition  as  reasonable 


duced  from  the  language  employed,  when  viewed  in  the  light  of  the  cir- 
cumstances attending  the  transaction."  Where,  by  applying  the  rule,  the 
tenant  by  a  renewal  of  a  lease  for  sixty  days,  would  lose  property  worth 
over  five  thousand  dollars,  held,  that  it  showed  an  intent  that  the  tenant 
should  retain  the  right  to  remove  given  by  the  prior  lease.  Wright  v. 
Macdonnell,  88  Tex.,  140,  152  (1895),  reversing  27  S.  W.,  1024  (Tex. 
Civ.   App.,   1894).] 

[While  a  new  lease  would,  under  ordinary  circumstances,  be  a  lease  of 
the  fixtures,  still  it  is  only  a  presumption  that  it  was  intended  to  cover 
fixtures,  and  it  is  open  to  proof.  If  the  new  lease  does  not  cover  the 
fixtures,  there  is  no  waiver  of  the  right  to  remove  them.  Where  the 
tenant  owning  fixtures  of  equal  value  to  the  realty,  which  he  has  the  right 
to  remove,  treats  with  his  landlord  for  a  new  lease,  he  is  not  supposed  to 
treat  for  a  lease  of  what  he  already  owns;  and  if  he  accepts  a  lease  which 
does  not  in  clear  terms  cover  the  property  which  he  owns,  it  ought  not  to 
be  construed  to  cover  such  property.  Second  Nat.  Bank  v.  O.  E.  Merrill 
Co.,  69  Wis.,  501    (1887).] 

[A  few  states  have  repudiated  the  rule  stated  in  the  text.  In  Kerr  v. 
Kingsbury,  39  Mich.,  150  (1878),  Cooley,  J.,  in  delivering  the  opinion  of 
the  court,  says:  "Why  the  right  should  be  lost  when  the  tenant,  instead 
of  surrendering  possession,  takes  a  renewal  of  his  lease,  is  not  very  appar- 
ent. There  is  certainly  no  reason  of  public  policy  to  sustain  such  a 
doctrine;  on  the  contrary,  the  reasons  which  saved  to  the  tenant  his  right 
to  fixtures  in  the  first  place  are  equally  influential  to  save  him  on  a 
renewal  what  was  unquestionably  his  before.  What  could  possibly  be  more 
absurd  than  a  rule  of  law  which  should  in  effect  say  to  the  tenant  who  is 
about  to  obtain  a  renewal:  'If  you  will  be  at  the  expense  and  troublo 
and  incur  the  loss  of  removing  your  erections  during  the  term,  and  of 
afterwards  bringing  them  back  again,  they  shall  be  yours;  otherwise  you 
will  be  deemed  to  abandon  them  to  your  landlord.'  *  *  *  In  our 
opinion  it  [the  new  lease]  ought  not  to  be  held  to  include  them  unless 
from  the  lease  itself  an  understanding  to  that  effect  is  plainly  inferable." 
See,  also,  Union  Terminal  Co.  v.  Wilmar  &  S.  F.  R'y  Co.,  116  Iowa,  392, 
397  (1902)  ;  Wittenmeyer  v.  Board  of  Education,  10  Ohio  Circ.  Ct.,  119 
(1895);  Radey  v.  McCurdy,  58  Atl.,  558   (Pa.,  1904).] 

[Taking  a  new  lease,  with  a  provision  that  the  tenant  will  deliver  up 
said  premises  in  as  good  condition  "as  the  same  are  now  in,"  does  not 
affect  the  right  to  remove  an  outbuilding  and  fences  which  the  tenant  had 
the  right  to  remove  under  his  former  lease,  as  they  were  personal  prop- 
erty, and  the  new  lease  is  of  real  property  only,  and  does  not  cover  such 
fixtures,  the  ocr-npancy  being  continuous.  McCarthy  v.  Trumacher,  108 
Iowa,  284   (1899).] 

17  257 


•177  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

use  and  wear  thereof  will  permit,  ete.,^  to  repair  and  surrender 
in  repair,  ete.,^  and  other  similar  covenants,  relate  to,  and  in- 
[*177J  elude  *the  fixtures  then  on  the  premises,  unless  there 
shall  he  some  very  special  matter  to  take  them  out  of  the  opera- 
tion of  the  covenant.     Whether  any  matter  capable  of  having 

iLoughran  v.  Ross,  45  N.  Y.,  792,  795  (1871).  One  lease  in  this  case 
contained  this  covenant,  and  the  other  demise  was  by  parol,  from  which, 
however,  the  court  say  the  same  agreement  would  be  implied.  See,  also, 
Jungcrman  v.  Bovee,  19  Cal.,  354  (1861).  [Van  Vleck  v.  White,  66  App. 
Div.,  14  (N.  Y.,  1901).] 

2  Thresher  v.  East  London  Water  Works,  2  B.  &  C,  608  (1824);  s.  C, 
4  D.  &  R.,  62  (limekilns)  ;  Earl  of  Mansfield  v.  Blackburne,  6  Bing.  N.  C, 
426  (1840)  ;  s.  C,  8  Scott,  720.  In  the  case  last  cited  the  plaintiff  demised 
a  parcel  of  land  and  salt  springs  to  defendant  for  the  purpose  of  estab- 
lishing salt  works  which  were  to  be  made  by  the  tenant  under  the  powers 
given  by  the  lease.  The  first  lease  contained  a  covenant  on  the  part  of 
the  lessor  after  the  expiration  of  the  first  lease  to  execute  a  new  lease 
of  the  demised  premises  "and  of  all  the  works,  pits,  kays,  buildings  and 
engines,  to  be  by  them  erected  and  made  on  the  same  premises ; ' '  and  the 
original  lease  also  contained  a  covenant  on  the  part  of  the  lessees  to  pay 
"an  additional  rent  of  71.  10s.  for  every  salt-pan  which  during  such 
further  term  should  be  erected,  worked,  etc.,  by  said  tenants  for  the 
making  of  white  salt."  The  renewed  lease  recited  the  former  lease,  and 
that  lessees  ' '  had  erected  and  set  up  divers  engines,  machines,  roads  and 
other  conveniences,  etc.,  for  managing  and  carrying  on,  etc.,  the  trade  or 
business  of  rock  salt,  etc.,  getters,  etc., ' '  and  after  this  recital  demised 
to  lessees  the  premises  as  in  the  original  lease  and  also  "all  and  every 
the  messuages,  dwelling-houses,  wich-houses,  salt-works,  erections,  build- 
ings and  other  matters  and  things  since  made  at,  in,  or  upon,  or  under  the 
said  demised  premises  for  the  use  and  convenience  of  carrying  on  the  said 
demised  trades. ' '  There  was  also  a  covenant  to  keep  and  maintain  in 
good  and  sufficient  repair  all  and  every  the  buildings,  kays,  work  and  works 
then  standing  and  being  on  the  premises,  and  all  and  every  such  other 
edifices  and  engines  as  should  be  at  any  time  during  the  term  erected,  set 
up,  built  or  made  in  or  upon  the  demised  premises,  and  at  the  determina- 
tion of  the  term  to  deliver  up  "all  and  every  the  said  premises  mentioned 
to  be  thereby  demised,  and  all  such  buildings,  kays,  works,  edifices  and  en- 
gines in  good  and  sufficient  repair  and  condition."  The  lessees  inter- 
mediate the  two  leases  erected  salt-works  and  salt-pans  which  latter  were 
composed  of  plates  of  iron  and  were  about  26  feet  long  by  26  feet  wide 
and  rested  by  their  own  weight  without  any  fastening  upon  low  brick  walls, 
and  had  iron  rings  on  their  sides  by  which  they  were  lifted  off  for  repairs. 
Other  pans  were  constructed  in  the  same  manner  after  the  renewed  lease. 
There  were  metal  pipes  conveying  the  brine  into  the  brine-pits,  which  were 
partly  carried  underground  and  partly  along  troughs  supported  by  tressels. 

258 


CHAP.  IV.]  CONTRACTS  SUBSEQUENT  TO  DEMISE.  *177 

such  an  effect  can  exist  dehors  the  deed,  seems  questionable.^ 
As  we  have  already  seen,-  however,  where  a  tenant  simply  holds 
over  by  consent  of  the  landlord,  either  express  or  implied,  after 
the  determination  of  a  lease  for  years,  it  is  held  to  be  evidence 
of  a  tenancy  without  any  definite  period  for  its  termination, 
and  in  either  case  is  construed  to  be  a  tenancy  from  year  to  year ; 
and  such  holding  will  be  presumed  to  be  under  and  subject  to 
the  terms  of  the  previous  lease.  Where,  therefore,  under  such 
prior  lease  the  tenant  had  the  right  of  removing  his  fixtures, 
such  right  will  not  be  lost  by  such  holding  over  under  such 
tenancy  from  year  to  year,  which  has  appropriately  been  termed 
"an  excrescence  on  the  term."^     But  where  a  lease  contained 

The  pans  could  not  be  removed  without  pulling  down  part  of  the  gable 
end  of  the  pan-houses.  Held,  that  under  the  demise  of  the  salt-works, 
etc.,  in  the  renewed  lease  were  included  the  salt-pans  "then  erected  or  set 
up  on  the  premises"  as  a  necessary  and  constituent  part  of  the  salt-works, 
and  that  the  covenant  to  deliver  up  "all  and  every  the  premises  demised" 
was  equally  comprehensive  and  included  such  salt-pans.  The  pipes  were 
put  by  the  court  on  the  same  footing  with  the  pans,  and  no  reference  was 
made  by  the  court  to  the  pans  put  up  after  the  second  lease,  which 
seem,  however,  to  have  been  included  in  the  verdict  for  plaintiff,  which  was 
not  lessened. 

[In  Watriss  v.  First  Nat.  Bank,  124  Mass.,  571,  574  (1878),  the  cove- 
nant was  to  surrender  the  premises  "as  the  same  now  are."  See,  also, 
Davy  V.  Lewis,  18  Up.  Can.,  Q.  B.,  21;  Ex  parte  D'Eresby  (1881),  44 
L.  T.  R.,  781,  reversing  Ex  parte  Sheen  (1881),  43  L.  T.  R.,  638.] 

[It  will  not  be  presumed  that  a  lease  which  is  not  printed,  contains 
covenants  to  surrender  the  premises  in  as  good  condition  as  received. 
Bernheimer  v.  Adams,   70  App.   Div.,   114,   123    (N.   Y.,   1902).] 

1  Thresher  v.  East  London  Water  Works;  Loughran  v.  Ross  (cited  supra)  : 
Jungcrman  v.  Bovee,  19  Cal.,  354  (1861).  [See  Hertzberg  v.  Witte,  22 
Tex.  Civ.  App.,  320,  322   (1899).] 

See,  however,  dictum  of  BuUer,  .T.,  in  Doc  v.  Burt,  1  Term,  704  (1787), 
that  "whether  parcel  or  not  of  the  thing  demised  is  always  matter  of  evi- 
dence. ' ' 

[Where  the  landlord  desires  the  tenant  to  sell  machinery  to  some  one 
who  would  rent  the  buildings,  and  proposes  to  try  to  find  such  a  pur- 
chaser, he  recognizes  the  right  of  the  tenant  to  remove  such  machinery. 
Second   Nat.   Bank   v.   O.   E.   Merrill   Co.,   69   Wis.,   501    (1SS7).] 

2  Ante,  p.  "HS. 

3  Mackintosh  v.  Trotter,  3  M.  &  W.,  184,  186  (18.38),  per  Parke,  B. 
[Estabrook  v.  TTughcs,  8  Neb.,  490,  500  (1879);  Class  v.  Coleman,  14 
Wash.,  635  (1896);  Pronguey  v.  Gurncy,  37  Up.  Can.,  Q.  B.,  347,  357 
(1875).] 

259 


*177  THE  LAW  OP  FIXTURES.  [CIIAP.  IV. 

Therefore,  whore  under  a  lease  for  years  a  tenant,  upon  complying  with 
his  covenants,  was  to  be  allowed  to  remove  a  brick  building  erected  by  him 
upon  the  premises;  and  after  the  termination  of  the  lease,  he  continued  to 
occupy  with  the  consent  of  the  landlord,  paying  rent  and  taxes  and  com- 
plying with  the  terms  of  the  lease,  and  the  property  was  condemned  for  a 
street.  Held,  that  no  forfeiture  having  taken  place  under  the  lease  at  the 
time  of  condemnation,  the  tenant  was  entitled  to  the  damages  assessed 
for  the  building.     Finney  v.  St.  Louis,  39  Mo.,   177    (1866). 

[Where  there  is  a  holding  over  by  mutual  consent,  or  by  consent  express 
or  implied,  the  right  of  the  tenant,  after  the  termination  of  the  original 
lease,  to  remove  the  building  will  not  be  forfeited.  * '  And  in  the  absence 
of  opposing  evidence,  the  presumption  goes  that  the  tenant  does  so 
hold  over."     Neiswanger  v.  Squier,  73  Mo.,  192,  198   (1880).] 

[See  Laidlaw  v.  Taylor,  2  Nova  S.  L.  E.,  155  (1881),  where  the  right 
to  remove  trade  fixtures  was  not  lost  by  a  parol  renewal  of  a  lease  which 
gave  such  privilege.] 

[Where  the  old  lease  is  extended,  the  right  of  removal  is  not  lost,  as  it 
does  not  create  a  new  tenancy.  Hedderich  v.  Smith,  103  Ind.,  203,  205 
(1885);  Young  v.  ConsoHdated  Imp.  Co.,  23  Utah,  586,  593  (1901); 
Clarke  v.  Howland,  85  N.  Y.,  204,  206  (1881).  In  the  last  case  the 
renewal  was  by  indorsement.  And  where  a  new  lease  is  in  effect  merely 
a  continuance  of  the  old  tenancy,  the  tenant  does  not  lose  his  right  to 
remove  fixtures.  Eoyce  v.  Latshaw,  15  Colo.  App.,  420,  425  (1900)  ;  Ross 
V.  Campbell,  9  Colo.  App.,  38.  In  Baker  v.  McClurg,  96  111.  App.,  165 
(1901),  aff'd  198  111.,  28  (1902),  one  of  the  lessees  wishing  to  retire  from 
the  firm,  the  lessor  wrote  "canceled"  upon  one  copy  of  the  lease  and  gave 
it  to  the  retiring  lessee,  but  kept  the  other  copy  uncanceled,  and  the  other 
lessee  executed  a  new  lease  for  the  remainder  of  the  term  with  the  same 
stipulations  as  the  other  lease.  Held,  that  the  parties  did  not  intend  and 
did  not  make  the  latter  lease  as  a  new  lease,  but  that  it  was  a  reiteration 
of  the  former,  its  effect  being  the  release  of  one  lessee  from  liability,  and 
was  no  more  than  if  an  indorsement  had  been  made  upon  the  original 
instrument,  and  had  no  effect  upon  the  right  to  remove  fixtures  placed 
upon  the  premises  prior  to  the  second  lease.] 

[A  lease  provided  that  improvements  made  "during  the  time  of  this 
lease"  might  be  removed  by  the  tenant.  Before  the  expiration  of  his 
term,  the  tenant  entered  into  negotiations  with  another  party  who  agreed 
to  purchase  the  improvements  provided  the  landlord  would  consent  to  an 
extension  of  the  lease.  They  visited  the  landlord,  stated  the  substance  of 
their  contract,  and  he  agreed  to  give  an  extension.  A  new  lease  was  given 
to  the  purchaser,  the  wording  of  which  was  substantially  as  the  first  one. 
Held,  that  the  purchaser  did  not  lose  his  right  to  the  improvements  placed 
upon  the  property  by  the  first  tenant,  as  the  original  agreement  was  for 
an  extension  of  the  first  term  and  not  for  a  new  term,  and  the  making  of 
a  subsequent  lease  was  the  mode  adopted  by  the  landlord  to  carry  out  his 
agreement.     Eooney  v.  Crary,  8  111.  App.,  329,  333    (1880).] 

[Where  a  lease  is  an  extension  with  the  "same  rights  and  privileges," 

260 


CHAP.  IV.]  CONTRACTS  SUBSEQUENT  TO  DEMISE.  *178 

a  clause  binding  the  landlord  (who  was  a  tenant  for  life)  to 
*pay  for  all  fruit  trees  and  shrubs  remaining  on  the  [*178] 
land  at  its  (the  lease's)  expiration,  the  land  being  occupied  by 
a  tenant  in  the  business  of  a  nurseryman,  and  the  demise  was 
terminated  by  the  expiration  of  the  landlord's  estate,  and  the 
tenant  continued  to  hold  under  the  remainderman  paying  the 
same  rent,  the  new  tenancy  thus  constituted,  though  popularly 
spoken  of  as  a  continuing  tenancy,  was  considered  by  the  court 
as  in  fact  a  new  contract  and  a  new  demise.  In  such  case  the 
question  whether  such  stipulation  contained  in  the  former 
tenancy  is  adopted  into  the  new,  is  a  question  of  fact;  and,  if 
nothing  passes  between  the  parties  but  the  payment  and  recep- 
tion of  rent,  the  new  landlord  is  not  bound  by  such  special 
stipulation  of  the  former  tenancy  not  in  fact  known  to  him, 
which  he  is  not  bound  to  know,  and  which  is  not  according  to 
the  custom  of  the  country .^  The  rule  is  stated  in  the  ease  cited 
to  be  that  "those  terms  are  to  be  assumed  as  existing  which  are 
according  to  use  and  custom,  but  not  a  special  term  in  the  orig- 
inal lease  not  known  to  the  defendant  and  which  she  was  not 
bound  to  know." 

As  in  the  case  of  a  lease  a  renewal  thereof  without  excep- 
tion or  reservation,  terminates  the  tenant's  right  to  remove 
fixtures,  so  is  it  in  the  case  of  other  agreements  which  termi- 
nate a  possession  under  it,  as  where  a  tenant  the  next  day  after 

and  the  former  lease  gave  the  right  to  remove  fixtures,  the  right  is  not 
lost.     Wright  V.  Macflonell,  27  S.  W.,  1024,  1026   (Tex.  Civ.  App.,  1894).] 

[If  a  tenant  holding  over  has  an  implied  tenancy,  and  retains  a  right 
to  remove  fixtures,  the  same  rule  should  be  applied  to  express  renewals. 
Kerr  v.  Kingsbury,   39   Mich.,   150,   156    (1878).] 

[Where  a  landlord,  by  refusing  to  permit  a  tenant  to  remove  his  fix- 
tures, gives  him  a  right  of  action  for  conversion,  a  subsequent  extension 
of  the  lease  does  not  interfere  with  the  tenant's  rights.  Wright  v.  Mac- 
donell,  88  Tex.,  140,  152   (1895).] 

[Where  one  in  possession  after  the  expiration  of  a  lease  giving  him  the 
right  to  remove  improvements,  becomes  a  tenant  in  common  of  the  land, 
he  does  not  lose  his  right  to  such  improvements.  Lewis  v.  Perry,  149  Mo,, 
257,  269   (1899).] 

1  Oakley  v.  Monck,  L.  R.,  1  Exch.,  159  (1866);  s.  C,  14  W.  R.,  406;  12 
Jur.  (N.  S.),  213;  14  L.  T.  (N.  S.),  20,  affirming  s.  c,  in  Court  of  Ex- 
chequer, 34  L.  J.,  Exch.,  137;  13  W.  R.,  721.  Sec,  also.  White  v.  Arndt,  1 
Whart.,   91    (1836);    Haflick   v.   Stober,    11    Ohio   St.,   482    (1860). 

261 


*178  THE  LAW  OF  FIXTURES.  [CHAP.  IV. 

the  termination  of  his  lease  contracted  by  title-bond  to  pur- 
chase the  promises,  there  being  no  exception  or  reservation  in 
such  bond.2 

2  Merritt  v.  Judd,  14  Cal,,  59  (1859).  [See,  also,  Seiberling  ▼.  Miller, 
207  111.,  443,  448  (1904) ;  Fernandez  v.  Soulie,  28  La.  Ann.,  31,  35  (1876)  ; 
but  see  McDonald  v.  Shepard,  25  Kan.,  112,  116  (1881).] 

[Where  lessee  takes  a  conveyance  of  the  premises  merely  for  security, 
paying  rent  during  his  entire  term,  and  subsequently  reconveying  to  his 
landlord,  there  was  never  such  a  unity  of  interest  in  the  tenant  as  to 
merge  trade  fixtures  in  the  realty.  Security  Loan  Co.  v.  Williamette  Mills 
Co.,  99  Cal.,  636,  641   (1893).] 

[An  agreement  by  a  tenant  to  go  out  of  possession  of  land  for  a  sum 
named  is  not  an  assignment  of  his  fixtures.  Weathersdane  Park  Co.  v. 
Watson,  16  Vict.,  758,  761  (1890).] 


262 


CHAPTER  V.  [*1'79] 

OF  FIXTURES  AS  BETWEEN  TENANTS  FOR  LIFE  OR  IN 

TAIL  ANT)  THEIR  PERSONAL  REPRESENTATIVES, 

AKD  THE  REMAINDER^^IAN  OR  REVERSIONER. 

The  adjudicated  cases  upon  the  topics  to  be  considered  in 
this  chapter  are  as  compared  with  those  concerning  the  rela- 
tion of  landlord  and  tenant,  comparatively  few  in  number.    As 
has  already  been  stated,^  the  right  of  removing  fixtures  has  not 
been  so  liberally  extended  in  this  relation  as  in  the  relation  of 
landlord  and  tenant.    But  on  the  other  hand  it  is  more  liberally 
allowed  here  than  in  that  of  executor  and  heir,  where  there  is 
the  least  relaxation;  and  hence  the  cases  in  the  latter  relation 
where  the  right  has  been  conceded  to  the  personal  representa- 
tive, have  been  generally  considered  as  authorities  for  the  right 
of  removal  in  this  relation,  and  in  that  of  landlord  and  tenant. 
The  exact  limits  in  this  respect  of  the  distinction  between  these 
different  relations,   seems  never  to  have  been  clearly  defined. 
The  reason  of  the  distinction,  however,  seems  clear  enough,  and 
herein,  perhaps,  may  be  found  all  the  practical  utility  there  is 
in  the  rule  itself.    Tenants  for  life  are  usually  widows  as  dow- 
resses,  or  husbands  as  tenants  by  curtesy,  or  devisees  under 
wills  with  remainder  to  children  or  other  blood  relations.     The 
persons  entitled  in  reversion  or  remainder,  in  such  cases,  are 
ordinarily  those  nearest  VA  ties  of  affection  and  blood  to  the 
tenants  of  the  life  er;tate.    It  may  well  be  presumed,  as  between 
such  parties,  that  improvements  put  upon  the  property  by  the 
life  tenants,  are  not  designed  for  the  temporary  use  of  such 
tenant,  but  as  permanent  ameliorations.2     And  where  no  such 

1  Ante,  p.  *90.  ^      ^ 

2  Per  Cooper,  Ch.,  in  Cannon  v.  Hare,  1  Tcnn.  Ch.,  22,  33  (1872).  See, 
also,  Ferard  Fixt.,  131,  321.  [See  Culleton  v.  Keunc,  18  Ky.  Law  Rep., 
1065,  1067   (1897).]  . 

[Buildings  and  fencing  put  upon  land  by  a  life  tenant  pass  to  romainder- 
men,  for  tho  obvious  reason  that  the  former  is  improving  his  own  prop- 
erty' for  his  own  present  benefit.  Merritt  v.  Scott,  81  N.  C,  385,  387 
(1879).] 

263 


*180  THE  LAW  OF  FIXTURES,  [CHAP.  V. 

[*1S0]  *relations  as  above  stated  exist  between  the  tenant  for 
life  and  the  remainderman  or  reversioner,  the  presumption 
arising  from  the  nature  and  i)robable  duration  of  the  estate 
of  the  tenant  for  life  seems  much  stronger  that  annexations  to 
the  estate  are  intended  to  be  permanent  accessions  to  the  realty, 
than  that  which  arises  from  the  simple  relation  of  landlord 
and  tenant  for  years,  whose  interest  is  temporary  only  and  not 
usually  so  long  in  duration  as  that  of  a  tenant  for  life.  And 
such  being  the  case  the  rule  would  not  naturally  be  so  liberally 
applied  as  in  the  relation  of  landlord  and  tenant  for  years, 
where  euch  presumption  is  not  so  strong  and  would  require 
less  to  overcome  it. 

The  subjects  of  this  chapter  may  conveniently  be  considered 
further,  (1)  with  reference  to  Fixtures  as  between  the  Tenants 
for  Life  or  in  Tail  during  their  lives,  and  the  Remainderman 
or  Reversioner;  (2)  Trade  Fixtures  and  Mixed  Cases  as  between 
the  Personal  Representatives  of  Tenants  for  Life  or  in  Tail,  and 
Remainderman  or  Reversioner;  (3)  Ornamental  or  Domestic 
Fixtures  as  between  the  parties  last  named;  (4)  Of  the  Rights 
of  Ecclesiastical  Persons  and  their  Representatives  to  Fixtures, 
etc.;  and  (5)  When  the  Right  of  Removing  Fixtures  as  be- 
tween the  Personal  Representative  of  Tenant  for  Life  or  in 
Tail,  and  the  Remainderman  or  Reversioner,  etc.,  must  be  ex- 
ercised. 

I.     Op  Fixtures  as  betvsteen  Tenants  for  Life  or  in  Tail 

DURING  their  LiVES,   AjnD  THE   REMAINDERMAN 

or  Reversioner: 

First.  Tenants  for  Life. — Although  tenants  for  life  are  enti- 
tled to  reasonable  estovers,  yet  they  are  prohibited  from 
destroying  those  things  which  are  not  included  in  the  tem- 
porary profits  of  the  land ;  because  that  would  tend  to  the  per- 
manent and  lasting  loss  of  the  person  entitled  to  the  inheritance. 
This   destruction   is   called   waste.^      Thus,    if   glass   windows, 

8  1  Cru.  Dig.,  tit.  3,  chap.  2,  §  1 ;  1  Wash.  Real  Prop.,  *107,  et  seq. 

As  between  the  tenant  for  life  and  remainderman,  the  thinnings  of  fir 
trees  under  20  years  of  age  belong  to  the  tenant  for  life.  Pidgeley  v. 
Eawling,  2  Colly.  Ch.,  275  (1845).  [See  Be  AinsUe  (1884),  28  Ch.  D., 
89,  92.] 

264 


CHAP,   v.]     TENANT  FOR  LIFE  AND  REMAINDERMAN,  ETC.  *181 

*though  put  in  by  the  tenant  himself,  be  broken  or  car-  [*181] 
ried  away,  it  is  waste.  So,  also,  as  it  is  said,  of  wainscot, 
benches,  doors,  furnaces,  and  the  like,  annexed  or  fixed  to  the 
house  by  the  tenant.^  But  the  removal  of  articles  placed  on  the 
premises  by  the  tenant,  but  not  annexed  to  the  freehold,  is  not 

waste.^ 

It  is  believed,  however,  that  the  right  of  a  tenant  for  life  as 
to  the  removal  during  his  lifetime  of  articles  annexed  by  him 
to  the  estate,  is  equally  extensive  w^ith  that  allowed  to  his 
executor  after  his  death  by  the  law  of  fixtures.  This  power 
of  removal  during  his  lifetime  is  not  a  power  incident  to  his 
estate,  but  is  an  exception  to  the  general  rule  in  relation  thereto 
accruing  to  him  by  virtue  of  the  law  of  fixtures.^ 

By  a  parity  of  reasoning,  a  tenant  pur  autre  vie,  should  after 
the  death  of  the  cestui  que  vie,  have  all  the  rights  of  removal 
that  would  be  possessed  by  his  executor  if  he  were  a  tenant  for 
his  own  life  simply.'^ 

[The  proceeds  from  the  sale  of  larch  trees  blown  clown  by  gales  of 
unprecedented  severity,  do  not  go  to  the  equitable  tenant  for  life.  Be 
Harrison's  Trusts   (1884),  28  Ch.  D.,  220.] 

4  1  Cru.  Dig.,  tit.  3,  ch.  2,  §  13;  Co.  Lit.,  53a;  1  Wash.  Eeal  Prop., 
•113;  Grady  Fixt.,  36.     [Eeed  v.  Keed,  68  Me.,  568,  571   (1878).] 

[Detaching  and  selling  the  running  gear  of  a  gin-house  is  waste.  Cannon 
V.  Barry,  59  Miss.,   289,  303    (1881).] 

[A  brick  building  three  stories  high  and  resting  upon  stone  founda- 
tions, erected  by  a  life  tenant,  can  not  be  removed  by  mechanics'  lienors 
as  against  the  remainderman.     Conrad  v.  Starr,  50  Iowa,  470,  482  (1879).] 

[Where  a  conveyance  is  made  subject  to  certain  conditions,  upon  a  viola- 
tion of  which  the  land  is  to  revert  to  the  grantor,  until  it  is  shown  that 
re-entry  was  made  or  suit  instituted  by  the  grantor  before  he  brings  an 
action  against  the  grantee  for  the  value  of  fixtures  removed  by  the  latter, 
ho  can  not  recover.  Dunman  v.  Gulf,  &c.,  R'y  Co.,  24  S.  W.,  701,  702 
(Tex.  Civ.  App.,  1894).] 

oClemence  v.  Steere,  1  R.  I.,  272   (1850). 

oSee  Ferard  Fixt.,  141.  [See  dictum  of  Kigby,  L.  J.,  in  lie  DeFalbe 
[1901],   1  Ch.,  523,  530.] 

^  Ferard  Fixt.,  141.  [A  tenant  pur  autre  vie  in  possession  after  the 
death  of  the  life  tenant,  does  not  lose  the  right  to  improvements  which 
he  could  have  removed  during  the  existence  of  the  life  estate.  Charleston 
&  W.  C.  R'y  Co.  V.  Hughes,  105  Ga.,  1,  25   (1898).] 

[The  purchaser  of  a  distillery  from  a  life  tenant,  thinking  he  was 
acquiring  the  fee,  replaced  the  old  still  with  a  new  (.nc.  which  ho  removed 
after  discovering  his  error.     The   remainderman   having   made   ai)plication 

265 


•182  TUE  L.\.\V  OP  FIXTURES.  [CIIAP.   V. 

Where,  however,  a  tenant  for  life  holds  without  impeach- 
ment of  waste,  the  ease  is  otherwise.  In  such  case  his  powers 
are  much  more  extensive;  and  like  those  of  a  tenant  in  tail, 
arise  merely  out  of  his  estate.^  Although  the  exercise  of  the 
right  of  severance  in  such  a  case  is  not  conferred  by,  and  is 
independent  of,  the  law  of  fixtures,  the  opinion  has  been  ex- 
pressed by  ^Ir.  Ferard  that  the  interest  of  the  tenant  for  life 
without  impeachment  of  M'aste  is  so  far  different  from  that  of 
a  tenant  in  tail,  that  if  a  case  w^ere  supposed  where  the  removal 
of  an  erection  put  up  by  the  tenant  for  life  himself,  would 
from  its  circumstances,  amount  to  an  act  of  malicious  waste  or 
destruction,  he  would  not  be  allowed  to  take  it  away  ;^  and  upon 
the  authorities  such  opinion  seems  well  founded.^''  It  seems, 
[*182]  *however,  that  the  rights  belonging  to  a  tenant  for  life 
from  his  not  being  impeachable  for  waste  are  personal,  or  a 
poM'er  not  coupled  with  an  interest,  and  hence,  at  least  as  to 
those  articles  not  removable  by  the  law  of  fixtures,  are  not 
subject  to  be  exercised  by  his  execution  creditor;  and  these 
rights  are  in  this  respect  to  be  distinguished  from  the  right  of 
removal  derived  from  the  law  of  fixtures.  This  distinction  was 
pointed  out  by  Lord  Holt  with  reference  to  the  taking  in  execu- 
tion of  the  fixtures  of  a  tenant  for  years,  in  Poole's  Case,ii 

for  a  mandatory  injunction  to  compel  the  restoration  of  the  new  still,  it 
was  held  that  he  was  not  entitled  to  the  new  still,  but  was  entitled  to  the 
value  of  the  old  one.     McLaren  v.  Coombs,  16  Gr.  Ch.,  587   (Ont.,  1869).] 

8  Ferard  Fixt.,  141. 

9  Ferard  Fixt.,  142. 

10  It  is  well  settled  that  a  tenant  for  life  without  impeachment  of  waste, 
may  be  restrained  by  injunction  from  the  commission  of  willful  and 
malicious  waste;  and  he  may  even  be  compelled  to  repair  the  waste,  if 
actually  committed,  where  it  can  be  done.  See,  generally,  the  following 
authorities:  Vane  v.  Lord  Barnard,  2  "Vern.,  738  (1716);  s.  C,  1  Eq.  Ca. 
Abr.,  399,  pi.  3;  Free.  Ch.,  454;  1  Salk.,  161  ;  Strathmore  v.  Bowes,  2  Bro. 
Ch.,  88  (1786)  ;  Marquis  of  Downshire  v.  Lady  Sandys,  6  Ves.,  107  (1801)  ; 
Marker  v.  Marker,  9  Hare,  1  (1851);  Lord  Tamworth  v.  Lord  Ferrars,  6 
Ves.,  419  (1801);  Paekington 's  Case,  3  Atk.,  215  (1744);  Aston  v.  Aston, 
1  Ves.  Sr.,  264  (1749);  O'Brien  v.  O'Brien,  Ambl.,  107  (1751);  Day  v. 
Merry,  16  Ves.,  375  (1810);  Pyne  v.  Dor,  1  Term,  56  (1785);  1  Bro.  Ch., 
166;  2  Atk.,  383;  16  Ves.,  185;  1  Wash.  Eeal  Prop.,  120.  [See  Stevens  v. 
Rose,  69  Mich.,  259,  270   (1888).] 

11 1  Salk.,  368  (1703) ;  s.  c.  Holt,  65.     See,  also,  Ferard  Fixt.,  142. 

266 


CHAP,  v.]     TENANT  FOR  LIFE  AND  REMAINDERMAN,  ETC. 


^183 


where  he  observed  that  "this  was  not  like  tenant  for  years 
without  impeachment  of  waste;  in  that  case  he  allowed  the 
sheriff  could  not  cut  down  and  sell,  though  the  tenant  might; 
and  the  reason  is,  because  in  that  case  the  tenant  hath  only  a 
bare  power  without  an  interest;  but  here  the  under-lessee  hath 
an  interest  as  well  as  a  power,  as  tenant  for  years  hath  in 
standing  corn,  in  which  case  the  sheriff  can  cut  down  and  sell." 

Tenants  in  dower  and  by  the  curtesy  may  not  commit  waste  ;^- 
and  their  rights  as  to  fixtures  do  not  seem  to  have  been  distin- 
guished from  those  of  ordinary  tenants  for  life.^^  It  may  be 
suggested,  however,  that  there  may  be  cases  where  by  reason 
of  the  relations  of  blood  and  aft'ection  existing  between  such 
tenants  for  life  and  those  entitled  in  reversion,  a  stronger  pre- 
sumption may  arise  that  improvements  put  upon  the  property 
by  such  life  tenants  are  designed  as  permanent  ameliorations, 
than  in  cases  of  life  tenancy  where  no  such  relation  exists.^* 

♦Second.  Tenants  in  Tail.— Estates  tail,  like  estates  [*183] 
in  fee  simple,  have  certain  incidents  inseparably  annexed  to 
them,  among  which  is  this:  that  as  a  tenant  in  tail  has  an 
estate  of  inheritance,  he  has  a  right  to  commit  every  kind  of 
waste,  as  by  felling  timber,  pulling  down  houses,  opening  and 
working  mines,  etc.;  and  he  may  undoubtedly,  as  an  incident 
to  his  estate,  and  independently  of  the  law  of  fixtures,  sever  and 
remove  whatever  he  has  annexed  to  the  realty,  irrespective  of 
the  mode  or  the  purpose  of  its  annexation.!^  It  seems,  also, 
that  if  a  tenant  in  tail  grant  all  his  estate,  the  grantee  is  dis- 
punishable of  waste;  and  also  if  the  grantee  grant  it  over,  his 
grantee  is  also  dispunishable.^^'  A  court  of  chancery  will  not 
in  any  ease  whatever  restrain  a  tenant  in  tail  from  committing 
waste.!'  But  this  power  to  commit  waste  must  be  exorcised 
during  the  life  of  the  tenant  in  tail,  for  at  the  instant  of  his 

12  1  Wash.  Real  Prop.,  *107;  1  Cru.  Dig.,  tit.  5,  ch.  2,  §  34;  Co.  Lit., 
53  a. 

isFerard  Fixt.,  143. 

1*  See,  ante,  p.  *179. 

IB  1  Cru.  Dig.,  tit.  2,  ch.  1,  §§  31,  32. 

16  Per  Clark,  J.,  in  3  Leon.,  121    (1585). 

iTl  Cru.  Dig.,  tit.  2,  ch.  1,  §  34;  Cas.  temp.  Talb.,  16;  Mos.,  224;  Atty. 
General  v.  Duke  of  Marlborough,  3  Ma<l.,  498   (1818). 

2G7 


•184  THE  LiUV  OF  FIXTURES.  [CII.IP,   V. 

death  it  ceases  j^^**  and  as  will  be  seen  in  a  subsequent  section 
the  right  of  his  personal  representatives  in  relation  to  remov- 
ing fixtures  is  quite  limited. 

The  estate  of  a  tenant  in  tail  after  possibility  of  issue  extinct, 
though  strictly  speaking  not  more  than  an  estate  for  life,  re- 
tains some  of  the  attributes  of  an  estate  tail,  and,  among  other 
privileges,  he  is  dispunishable  for  waste,  because  he  continues 
in  by  virtue  of  the  livery  upon  the  estate  tail ;  and  having 
once  had  the  power  of  committing  waste  he  shall  not  be  de- 
prived of  it  by  the  act  of  God.^^  But  such  a  tenant,  like  a 
tenant  for  life  without  impeachment  of  waste,  may  be  restrained 
by  injunction  from  the  commission  of  wilful  and  malicious 
waste.^^  The  privileges  which  a  tenant  in  tail  after  possibility 
of  issue  extinct  enjoys,  arise  from  the  privity  of  estate  and 
[*184]  because  *the  inheritance  was  once  in  him;  but  if  he 
grants  over  his  estate  to  another,  his  grantee  will  be  bare  tenant 
for  life.21 

This  section  can  not  be  better  concluded  than  by  quoting 
from  the  valuable  work  of  ]\Ir.  Ferard  on  the  Law  of  Fixtures,22 
to  which  we  acknowledge  our  obligation  for  much  that  appears 
in  this  chapter;  referring  to  the  rights  of  tenants  for  life,  etc., 
and  of  their  executors,  he  says:  "From  comparing  the  rights 
enjoyed  by  the  owners  of  these  several  interests  and  by  their  per- 
sonal representations,  it  may  be  seen  that  the  privilege  of  remov- 
ing fixtures  after  the  determination  of  the  particular  estate,  does 
not  arise  out  of  the  principle  that  whatever  a  testator  might 
have  removed  in  his  lifetime,  his  executor  is  entitled  to  remove 
after  his  death.  For  it  has  been  shown  that  the  rights  of 
tenants  in  tail  and  tenants  for  life,  differ  both  in  nature  and 
degree;  whereas  the  rights  of  their  executors  are  in  all  respects 
similar.  The  distinction  seems  to  be,  that  in  the  case  of  tenant 
in  tail  or  tenant  without  impeachment  of  waste,  the  testator 
removes  articles  affixed  to  the  freehold  simply  by  reason  of  a 

18  1  Cru.  Dig.,  tit.  2,  ch.  1,  §  32. 

19  1  Cru.  Dig.,  tit.  4,  sec.  8;  Ferard  Fixt.,  143;  Bowles'  Case,  11  Co.,  79 
(1615);  Williams  v.  Williams,  15  Ves.,  419  (1808);  2  Freem.  53.  278; 
Doct.  &  Stud.  Dial.,  2,  ch.  1. 

20  1  Cru.  Dig.,  tit.  4,  sec.  12,  et  seq.,  and  cases  cited. 

21  Co.  Lit.,  28a;   1  Cru.  Dig.,  tit.  4,  sec.  16;  3  Leon.,  241. 

22  p.  143. 

268 


CHAP,  v.]  TRADE   FIXTURES  AND  MIXED   CASES.  *185 

power  incident  to  an  estate  in  land;  whereas  the  right  of  the 
executor  is  communicated  to  him  by  the  law,  with  a  view  to 
public  benefit  and  convenience.  The  analogy  of  the  doctrine  of 
emblements,  which  is  frequently  of  use  in  explaining  the  law 
of  fixtures,  seems,  in  this  instance,  calculated  to  mislead.  ]\Iany 
legal  inferences  of  a  curious  nature  appear  to  result  from  the 
comparison  here  suggested.  Thus,  in  respect  of  the  rights  of 
the  executor  of  a  tenant  in  tail:  it  is  apprehended,  that  if  his 
testator  leaves  issue  in  tail,  the  executor  will  not  be  entitled 
to  greater  privileges  as  to  fixtures  against  the  heir  in  tail,  than 
the  executor  of  tenant  in  fee  simple  may  be  found  to  have 
against  the  heir  in  fee;^^  although  the  heir  in  tail  takes  per 
formam  doni.  Consequently,  the  right  of  the  executor  of  a 
tenant  in  tail  may  vary  according  as  it  is  opposed  to  that  of 
the  heir  in  tail,  or  to  that  of  the  remaindermaii  and  rever- 
sioner. That  is  to  say,  if  there  be  any  difference  between  the 
right  of  an  executor  against  the  *heir  in  fee  simple,  and  [*185] 
the  right  of  an  executor  of  tenant  in  tail  against  the  remainder- 
man and  reversioner,  the  same  difference  will  be  found  between 
the  right  of  the  executor  of  tenant  in  tail  against  the  issue  in 
tail,  and  that  of  the  executor  of  tenant  in  tail  against  the 
remainderman  and  reversioner.  It  would  not,  however,  be 
proper  to  enter  further  into  questions  of  this  nature,  since  the 
legal  authorities  appear  to  be  wholly  silent  upon  them." 

II.     Of  Trade  Fixtures  and  !Mixed  Cases,  as  between  the 

Personal  Representatives  of  Tenant  for  Life  or 

IN  Tail,  and  Remainderman  or  Reversioner. 

The  first  case  in  which  tlic  subject  here  under  consideration 
was  directly  considered  and  passed  upon,  seems  to  have  been 
the  leading  case  of  Lawton  v.  Lawi;on,24  decided  by  Lord  Chan- 
cellor Ilardwicke  in  1743.  The  material  ([uestion  in  this  case 
was  whether  a  fire-engine  set  up  for  the  benefit  of  a  colliery  by 
a  tenant  for  life,  should  be  considered  as  personal  estate,  and 
go  to  his  executor,  or  fixed  to  the  freehold  and  go  to  the  remain- 
derman.    Tlie  engine  in  question  had  a  shed  over  it   (erected 

23  To  the  same  effect,  see  Gibb.  Fixt.,  13. 
2*  3  Atk.,  13. 

269 


•186  THE  LAW  OF  FIXTURES.  [CHAP.  V. 

merely  for  the  use  of  the  engine)  in  which  holes  were  left  for 
the  ends  of  the  timbers,  to  make  it  more  commodious  for  re- 
moval. The  evidence  for  the  plaintiff  stated  that  such  engines 
were  capable  of  being  carried  from  one  place  to  another;  but 
on  the  part  of  the  defendant  evidence  was  produced  to  show 
that  the  engine  could  not  be  removed  without  tearing  up  the 
soil  and  destroying  the  brick-work.  Lord  Hardwicke,  in  deliv- 
ering his  judgment,  inter  alia,  said:  "This  brings  on  the 
question  of  the  fire-engine,  whether  it  shall  be  considered  as 
personal  estate,  and  consequently  applied  to  the  increase  of  as- 
sets for  payment  of  debts.  Now  it  docs  appear  in  evidence, 
that  in  its  own  nature  it  is  a  personal  movable  chattel,  taken 
either  in  part  or  in  gross  before  it  is  put  up.  But  then  it  has 
been  insisted  that  fixing  it  in  order  to  make  it  work,  is  prop- 
[*186]  *erly  an  annexation  to  the  freehold.  To  be  sure,  in  the 
old  cases  they  go  a  great  way  upon  the  annexation  to  the  free- 
hold, and  so  long  ago  as  Henry  the  Seventh's  time,  the  courts 
of  law  construed  even  a  copper  and  furnaces  to  be  part  of  the 
freehold.  Since  that  time  the  general  ground  the  courts  have 
gone  upon  of  relaxing  this  strict  construction  of  law  is,  that  it 
is  for  the  benefit  of  the  public  to  encourage  tenants  for  life  to 
do  what  is  advantageous  to  the  estate  during  their  term."  After 
stating  some  instances  of  the  relaxation  of  the  old  rule  as 
between  landlord  and  tenant,  he  proceeded  as  follows:  "It  is 
said,  there  are  two  maxims  which  are  strong  for  the  remain- 
derman: First,  that  you  shall  not  destroy  the  principal  thing 
by  taking  away  the  accessary  to  it.  This  is  very  true  in  gen- 
eral, but  does  not  hold  in  the  present  case,  for  the  walls  are 
not  the  principal  thing,  as  they  are  only  sheds  to  prevent  any 
injury  that  might  otherwise  happen  to  it.^ 

"Secondly.  It  has  been  said  that  it  must  be  deemed  part  of 
the  estate,  because  it  cannot  subsist  without  it.  Now,  collieries 
formerly  might  be  enjoyed  before  the  invention  of  engines,  and 
therefore  this  is  only  a  question  of  majus  and  minus,  whether 
it  is  more  or  less  convenient  for  the  colliery.  There  is  no  doubt 
but  the  case  would  be  very  clear  as  between  landlord  and  ten- 

1  In  another  part  of  the  opinion  it  is  said  that  "it  does  not  differ 
■whether  a  shed  over  such  an  engine  be  made  of  brick  or  wood,  for  it  is  only 
intended  to  cover  it  from  the  weather  and  other  inconveniences."  [See 
Ward  V.  Dudley  (1887),  57  L.  T.  E.,  20.] 

270 


CHAP,  v.]  TRADE  FIXTURES  AND  MIXED   CASES.  *187 

ant.  It  is  true,  the  old  rules  of  law  have  indeed  been  relaxed 
chiefly  between  landlord  and  tenant,  and  not  so  frequently  be- 
tween an  ancestor  and  heir,  or  tenant  for  life  and  remainder- 
man. But  even  in  these  cases  it  does  admit  the  consideration 
of  public  conveniency  for  determining  the  question.  I  think, 
even  between  ancestor  and  heir,  it  would  be  very  hard  that 
such  things  should  go  in  every  instance  to  the  heir.^  One 
reason  that  weighs  with  me  is  its  being  a  mixed  case  between 
enjoying  the  profits  of  land,  and  carrying  on  a  species  of  trade; 
and  considering  it  in  this  light,  it  comes  very  near  the  instances 
in  brew-houses,  etc.,  of  furnaces  and  coppers."  *  *  *  *  "This 
*is  not  the  case  between  an  ancestor  and  an  heir,  but  [*187] 
an  intermediate  case,  as  Lord  Hobart  calls  it,  between  a  tenant 
for  life  and  remainderman.  Which  way  does  the  reason  of  the 
thing  weigh  most,  between  a  tenant  for  life  and  a  remainder- 
man, and  the  personal  representative  of  tenant  for  life,  or  be- 
tween an  ancestor  and  his  heir,  and  the  personal  representative 
of  the  ancestor?  Why,  no  doubt  in  favor  of  the  former,  and 
comes  near  the  case  of  a  common  tenant,  where  the  good  of 
the  public  is  the  material  consideration,  which  determines  the 
court  to  construe  these  things  personal  estate;  and  is  like  the 
case  of  emblements,  which  shall  go  to  the  executor,  and  not  to 
the  heir  or  remainderman,  it  being  for  the  benefit  of  the  king- 
dom, which  is  interested  in  the  produce  of  corn  and  other  grain, 
and  will  not  suffer  them  to  go  to  the  heir.  It  is  very  well 
known  that  little  profit  can  be  made  of  coal  mines  without 
this  engine;  and  tenants  for  lives  would  be  discouraged  in 
erecting  them  if  they  must  go  from  their  representative  to  a 
remote  remainderman,  when  the  tenant  for  life  might  possibly 
die  the  next  day  after  the  engine  is  set  up.  These  reasons  of 
public  benefit  and  convenience  weigh  greatly  with  me,  and  are 
a  principal  ingredient  in  my  present  opinion."  Tlie  engine 
was  accordingly  decreed  to  go  to  the  executor  for  the  increase 
of  assets.3 

2  See,  however,  as  to  this  dictum,  Fisher  v.  Dixon,  cited  post  under  the 
head  Executor  and  ITcir;   1  Wms.  Exrs.   (6th  London  ed.),  691. 

8  Reg.  Lib.  B.  (1743),  fol.  151.  There  were  certain  other  engines  fixed 
upon  salt-works  by  the  father  of  the  tenant  for  life.  These  engines  were 
(Iccrfod  not  to  be  the  personal  estate  of  the  testator.  [Sec  Ward  v.  Dud- 
ley  (1887),  57  L.  T.  E.,  20,  24.] 

271 


•188  THE  LAW  OP  FIXTURES.  [CHAP.  V. 

Dudley  v.  Wardo^  was  very  similar  in  its  facts  to  the  ease 
last  cited.  This  case  was  a  bill  filed  by  the  plaintiff  as  an 
executor  of  William  Lord  Dudley  against  the  defendant,  who 
was  remainderman  of  the  estate,  to  have  four  fire-engines  deliv- 
ered up  as  part  of  the  personal  estate  of  Earl  William,  who 
had  died  seized  of  the  colliery  on  which  they  were  erected. 
Three  of  the  engines  had  been  erected  by  Earl  Edward,  his 
father,  who  was  tenant  in  tail  of  the  estate  (which  came  to  Earl 
AVilliam  under  a  settlement),  and  the  fourth  was  erected  by 
Earl  William ;  but  it  did  not  appear  whether  Earl  William  was 
tenant  for  life  or  in  tail  of  the  estate.  Lawton  v,  Lawton  was 
[*188]  *cited  and  followed,  and  the  one  engine  erected  by  Earl 
William  was  decreed  to  the  plaintiff,  and  the  bill  dismissed  as 
to  the  other  three.  In  rendering  his  judgment  Lord  Hard- 
wicke  said:  ''The  case  being  between  executor  of  tenant  for 
life  or  in  tail  and  a  remainderman,  is  not  quite  so  strong  as 
between  landlord  and  tenant,  yet  the  same  reason  governs  it  if 
tenant  for  life  erects  such  an  engine.  In  the  case  of  Lawton  v. 
Lawton,  it  was  determined  it  should  go  to  executors,  partly  on 
reasons  there  mentioned,  and  partly  on  the  authority  of  the 
case  of  a  cider-mill,^  there  cited  to  have  been  so  adjudged  by 
Lord  C.  B.  Comyns;  that  of  Lawton  v.  Lawton  was  the  case  of 
creditors,  but  that  makes  no  difference,  because  the  question  is 
whether  part  of  the  real  or  personal  estate.  If  it  is  so  in  the 
case  of  tenant  for  life,  query,  how  it  would  be  in  case  of 
tenant  in  tail?  Tenant  in  tail  has  but  a  particular  estate, 
though  somewhat  higher  than  tenant  for  life.  In  the  reason 
of  the  thing  there  is  no  material  difference ;  the  determinations 
have  been  from  consideration  of  the  benefit  of  trade.  A  col- 
liery is  not  only  an  enjoyment  of  the  estate,  but  in  part  carry- 
ing on  a  trade."  The  reason  of  emblements  going  to  the  executor 
of  a  particular  tenant  holds  here,  to  encourage  agriculture; 
suppose  a  man  of  indifferent  health,  he  would  not  erect  such 
an  engine  at  a  vast  expense,  unless  it  would  go  to  his  family." 

4  1  Ambl.,  113   (1751). 

5  This  ease  will  be  found  referred  to  (post)  under  the  head  Executor 
and  Heir. 

eSee  Jesus  College  v.  Bloom,  1  Ambl.,  56  (1745);  s.  c,  3  Atk.,  264; 
Hanson  v.  Gardiner,  7  Ves.,  308  (1802)  ;  Jefferys  v.  Smith,  1  Jac.  &  Walk., 
302   (1820).     [See,  ante,  p.  *103.] 

272 


CHAP,   v.]  TR.\DE  FIXTURES   AND  MIXED   CASES.  *189 

The  principle  of  these  two  eases  has  been  since  recognized  and 
followed  in  other  cases,  and  may  be  regarded  as  well  settled." 
*It  is  of  conrse  applicable  also  to  the  case  of  fixtures  [*189] 
erected  solely  for  trade  purposes,  and  not  in  part  as  a  means  of 
enjoying  the  profits  of  land,  the  consideration  of  public  policy 
and  convenience  applying  to  the  latter  case  even  more  strongly 
than  to  the  former.'^  The  decided  cases  on  the  subject  relate 
only  to  steam-engines;  but  there  can  be  no  reasonable  doubt 
that  should  the  question  arise,  the  exception  would  be  extend- 
ed so  as  to  include  all  utensils,  machines,  and  other  articles  of 
a  similar  nature  which  are  themselves  of  a  chattel  nature  and 
capable  of  being  detached  Avithont  material  injury  to  the  free- 
hold or  to  themselves  and  of  being  set  up  and  used  elsewhere, 
to  which  the  principle  of  said  cases  is  as  applicable  as  to  the 
case  of  engines.     It  seems  that  the  exception  extends  also  to 

^  See  Lawton  v.  Salmon,  1  H,  Bl.,  259,  note  (1782) ;  s.  c,  3  Atk.,  16 
note,  per  Lord  Mansfield;  Penton  v.  Eobart,  2  East,  88,  91  (1801),  per 
Lord  Kenyon;  Elwes  v.  Maw,  3  East,  38,  54  (1802),  per  Lord  Ellen- 
borough;  Estate  of  Hinds,  5  Whart.,  138  (1840),  where  a  woman  having 
real  estate  married,  and  her  husband  during  the  coverture  put  up  a  steam- 
engine  on  a  stone  and  brick  foundation,  for  the  purpose  of  carrying  on 
the  carding  and  spinning  business,  and  it  was  held,  that  his  representatives 
after  his  death  were,  as  against  the  wife,  entitled  to  remove  it  from  the 
premises,  or  to  the  proceeds  thereof  if  sold  by  the  wife. 

There  were,  in  the  cases  of  Lawton  v.  Lawton  and  Dudley  v.  Warde, 
other  engines  erected  by  the  ancestors  of  the  tenants,  which  were  decreed 
not  to  be  personalty.  See  the  note  to  Lawton  v.  La^vton;  and  Dudley  v. 
"Warde,  at  the  end  of  the  case. 

[An  engine  set  on  cross  timbers  in  the  ground,  a  gin  held  by  cleats,  a 
condenser  nailed  to  the  gin  and  to  the  joists,  an  anvil  nailed  to  a  block 
extending  into  the  ground,  a  vise  nailed  to  a  bench  nailed  to  the  house, 
and  a  bellows  supported  by  posts  in  the  ground  and  braced  by  pieces 
nailed  to  the  house,  attached  by  a  tenant  by  the  courtesy  for  the  mixed 
purpose  of  trade  and  agriculture,  belong  to  the  executor  as  against  the 
remainderman,  and  can  be  removed  within  a  reasonable  time.  Overman  v. 
Sasser,   107  N.  C,  432   (1890).] 

[An  cxorutor  of  a  tenant  for  life  of  mines  is  entitled  to  blast  furnaces, 
steam-engines  and  sheds  protecting  them,  boilers,  gas-pipes,  machinery,  a 
railway,  weighing-machines,  all  removable  without  material  injury;  but 
not  to  a  shaft,  nor  to  brick  buildings  used  as  workshops.  Ward  v.  Dudley 
(1887),  .57  L.  T.  R.,  20.] 

8  See  Estate  of  Hinds   (supra). 

18  273 


♦190  THE  LAW  OF  FIXTURES.  [CIIAP.  V. 

trade  buildiiif^s.^  The  principle  al)Ove  stated  should  however 
be  taken  with  the  limitation  that  such  fixtures  are  not  so 
annexed  as  to  show  a  design  to  make  them  a  pei-manent  acces- 
sion to  the  realty,  in  which  case  they  would  of  course  be  irre- 
movable. 

The  general  grounds  of  the  exception  are  stated  in  the  ease 
quoted  from  to  be  those  of  public  benefit  and  convenience.  While 
these  may  be  regarded  as  the  original  grounds  of  the  excep- 
tion, as  has  already  been  intimated,  the  intention  of  the  tenant 
for  life  or  in  tail,  in  making  the  annexation  it  is  believed  will 
now  often  have  a  controlling  influence  in  determining  the  ques- 
[*190]  *tion  of  removability;  and  though  by  reason  of  the 
relation  of  the  parties  and  the  duration  of  the  estate  of  the 
tenant,  the  presumption  that  an  annexation  made  by  him  was 
intended  as  a  permanent  accession  to  the  realty  is  stronger 
here  than  in  the  case  of  landlord  and  tenant  for  years,  and 
hence  more  evidence  is  in  general  required  to  overthrow  it,  yet 
it  is  believed  that  in  other  respects  the  observations  made  in  a 
previous  chapter  in  relation  to  the  question  of  intention  are  in 
general  equally  applicable  to  this  section  and  chapter;  and  the 
reader  is  accordingly  referred  to  that  chapter  for  the  further 
consideration  of  the  subject.^ "^ 
[*191]  *    The  cases  before  quoted  from  seem  also  to  lay  down  the 

»See  White  v.  Arndt,  1  Whart.,  91  (1835);  Cannon  v.  Hare,  1  Tenn. 
Ch.,  22,  34  (1872),  where  it  is  said:  "It  is  probable,  also,  that  the  excep- 
tion in  favor  of  buildings  erected  for  purposes  of  trade,  will  be  limited  in 
the  case  of  tenant  for  life  to  such  as  are  erected  exclusively  for  purposes 
of  trade  proper,  and  will  not  be  extended  to  occupations  having  an  affinity 
or  resemblance  to  trade.  In  the  absence  of  authority,  however,  this  can 
only  be  considered  as  a  suggestion." 

The  exception  does  not,  as  it  seems,  extend  to  buildings,  or  other  an- 
nexations for  farming  purposes,  though  there  seems  no  good  reason  for 
any  distinction.  Ilaflick  v.  Stober,  11  Ohio  St.,  482  (1860)  ;  McCullough 
v.  Irvine,  13  Penn.  St.,  438  (1850).  See,  also,  Glidden  v.  Bennett,  43  N, 
H.,  306  (1861),  where  fences  were  erected  by  the  husband  of  a  dowress  on 
the  dower  estate.     [See,  ante,  p.  *110.] 

[Cabins  and  barns,  "permanent  improvements  put  by  the  life-tenant 
upon  the  land,"  go  to  the  remainderman  as  part  of  the  estate.  Brooks  v. 
Brooks,  12  S.  C,  422,  464   (1879).] 

10  Ante,  p.  *39.  No  reason  is  perceived  why,  except  as  above  stated,  the 
rules  heretofore  given  in  considering  the  relation  of  landlord  and  tenant 
are  not  in  general  equally  applicable  to  this  relation  also;  though  in  the 

274 


CHAP,  v.]  TRADE  FIXTURES   AND   MIXED   CASES.  *191 

rule  that  if  the  removal  of  fixtures  annexed  by  the  tenant  for 
life  or  in  tail  occasions  substantial  damage  to  the  realty,  or  if 
they  are  so  essential  to  the  enjoyment  of  the  realty,  that  it  can- 
not be  enjoyed  without  them,  they  cannot  be  removed  as  against 
the  remainderman;  but  that  where  the  damage  caused  by  the 
removal  is  only  to  that  which  is  accessory  to  the  thing  removed 
as  to  the  engine-house  in  the  cases  cited,  or  to  the  walls  in  the 
case  of  coppers,  etc.,  such  damage  is  no  ground  for  denying 

absence  of  direct  decisions  to  that  effect  such,  can  not  be  affirmed  to  be 
the  case. 

With  reference  to  this  subject  Mr.  Ferard  (page  135)  says:  "The  prac- 
tical inference  to  be  deduced  from  the  observations  in  the  foregoing  pages 
is,  that  in  ascertaining  whether  a  particular  article  set  up  in  relation  to 
trade,  forms  part  of  the  personal  estate  of  tenant  for  life  or  in  tail,  the 
first  inquiry  will  be  whether  it  is  governed  by  the  case  of  the  fire-engines, 
or  that  of  the  cider-mill,  decided  between  the  executor  and  the  heir  of  the 
deceased  owner  in  fee.  The  analogy  of  the  different  cases  between  land- 
lord and  tenant  may  next  be  resorted  to;  with  that  caution,  however,  which 
it  has  been  seen,  is  necessary  on  such  occasions. ' '  [i  e.,  ' '  that  although 
everything  which  belongs  to  the  representatives  of  a  tenant  for  life  or  in 
tail,  on  the  ground  of  its  relation  to  trade,  may  be  considered  a  fortiori 
removable  by  a  tenant  against  his  landlord,  a  decision  between  these  latter 
parties  must  not  be  relied  upon  as  forming  a  conclusive  ground  of  determi- 
nation, where  the  claims  of  the  former  individuals  are  in  question.  Never- 
theless from  the  analogy  which  prevails  between  the  two  classes,  it  will 
always  be  found  useful  in  determining  the  rights  of  tenant  for  life  or  in 
tail,  to  consult  any  corresponding  cases  that  have  been  decided  between  a 
common  tenant  and  his  landlord."]  "In  every  instance,  the  general 
principles  of  trade  fixtures,  as  they  apply  to  each  class  of  individuals, 
must  be  borne  in  mind.  And  lastly,  regard  must  be  paid  to  all  those 
circumstances  arising  out  of  each  particular  case,  which  have  been  par- 
ticularly alluded  to  in  the  concluding  part  of  the  first  section  of  the  pre- 
ceding chapter.  For  from  Lord  Ilardwicke's  observations  upon  the  sub- 
ject, it  will  appear  that  besides  other  considerations,  the  question  whether 
part  of  the  real  or  the  personal  assets  may  be  materially  affected  by  the 
nature  and  construction  of  the  article,  its  value  to  the  inheritance,  and  the 
injury  its  removal  will  cause  to  the  estate. 

"It  is  indeed  not  unreasonable  to  expect  that  at  the  present  day,  a  de- 
cision of  the  courts  would  carry  the  relaxation  in  favor  of  the  personal  estate 
further  than  to  the  removal  of  mere  machinery,  like  fire-engines  before 
Lord  Hardwicke.  For  in  the  time  of  Lord  Ifardwicke,  Poole's  case  was  the 
only  reported  authority  which  expressly  recognized  the  exception  in  respect 
of  trado  fixtures.  Whereas,  since  that  period,  the  general  principle  of  the 
exception  has  been  gradually  extended  and  has  been  acted  upon  by  the 
courts  with  increasing  liberality." 

275 


•192  THE  LAW  OF  FIXTURES.  [CHAP.   V. 

the  exercise  of  the  right.^  Wliere,  also,  the  articles  in  question 
were  not  in  themselves  of  the  nature  of  movable  chattels  in 
gross  or  in  part  before  they  were  put  up,  or  are  incapable  of 
removal  without  substantial  injury  to  themselves,  these  con- 
siderations afford  strong  evidence  of  an  intention  to  devote  them 
to  the  realty  so  as  to  render  them  irremovable  by  the  representa- 
tive. The  question,  however,  in  each  case,  is  believed  to  be  a 
mixed  one  of  law  and  fact  for  which  no  invariable  rule  can  be 
laid  down,  but  in  the  solution  of  which  the  intention  of  the 
party  making  the  annexation  is  a  controlling  factor.^ 

III.    Of  Ornamental  and  Domestic  Fixtures,  etc.,  as  be- 
tween THE  Personal  Representatives  of  Tenant  for 
Life  or  in  Tail,  and  Remainderman  or 
Reversioner. 

With  respect  to  the  right  of  the  executor  of  tenant  for  life, 
as  against  the  remainderman  or  reversioner,  to  fixtures  set  up 
for  ornament  or  domestic  convenience,  it  is  stated  in  Williams 
[*192]  *on  Executors,^^  that  though  "not  a  single  case  is  to  be 
found  in  the  books  relating  expressly  to  this  subject,  neverthe- 
less, upon  the  ground  that  the  law  is  more  favorable  in  this  re- 
spect to  the  executor  of  tenant  for  life  than  to  the  executor  of 
tenant  in  fee,  it  is  clear,  a  fortiori,  that  all  the  cases  which  sup- 
port the  right  of  the  latter  to  hangings,  pier-glasses,  tapestry, 
pictures,  iron  backs  to  chimneys,  furnaces,  grates,  etc.,  are  ex- 
press authorities  in  favor  of  the  right  of  the  former ;  and  further 
that  the  strong  expressions  of  judges  in  favor  of  the  heir,  which 
in  the  recent  cases  heretofore  mentioned,  somewhat  weaken  the 
effect  of  the  determinations  in  favor  of  the  claims  of  the  ex- 
ecutor of  tenant  in  fee,  do  not  affect  them  with  relation  to  those 
of  tenant  for  life  or  in  tail."  The  same  views  are  also  ad- 
vanced by  Mr.  Ferard  and  other  writers  on  the  subject.^  Since 
the  date  of  the  edition  of  Williams  on  Executors  above  quoted 

iSee,  also,  Ferard  Fixt.,  131;  Grady  Fixt.,  47. 

2  See  (ante),  pp.  *24,  *39. 

3  6th  London  ed.,  I.,  p.  701. 

4  Ferard  Fixt.,  137,  et  seq.;  Grady  Fixt.,  49;  Gibb.  Fixt.,  12.     See,  also 
{post),  chapter  on  Executor  and  Heir. 

276 


CHAP,   v.]  ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *192 

from,  the  subject  therein  referred  to  has  been  considered  to 
some  extent  by  Lord  Romilly  in  the  case  of  D'Eyncourt  v. 
Gregory.^  As  this  is  a  well  considered  case  and  one  of  con- 
siderable importance,  in  the  absence  of  other  authorities  on  the 
subjects  therein  considered,  it  will  be  herein  quoted  at  some 
length :  In  this  case  a  testator,  who  was  tenant  for  life  of  set- 
tled estates  upon  which  he  had  erected,  fitted  up  and  furnished 
a  mansion  (the  old  one  on  another  site  having  fallen  into  de- 
cay), demised  his  fee  simple  estates  in  strict  settlement  to  the 
same  persons  to  whom  the  settled  property  would  pass,  and 
gave  to  his  trustees  all  the  tapestry,  marbles,  statues,  bronzes, 
pictures,  prints  and  drawings,  with  their  frames  and  glasses, 
which  should  be  in  or  about  the  said  mansion  house  at  the 
time  of  his  death  and  of  which  he  had  power  to  dispose,  to 
be  enjoyed  and  to  go  as  heir-looms  with  the  property  as  far  as 
the  rules  of  law  and  equity  would  permit,  with  a  shifting  clause 
providing    that    in    case    of    the    non-fulfillment    of    a    speci- 

t-L.  R.,  3  Eq.,  382  (Dee.  7,  1866);  s.  c,  36  L.  J.  (N.  S.),  Chanc,  107; 
15  W.  R.,  186.  See,  also,  Snedeker  v.  Warring,  12  N.  Y.,  170  (1854),  ante, 
p.  "25;  Rogers  v.  Crow,  40  jNIo.,  91  (1867);  Steuart  v.  Douglas  (1870), 
reported  in  Brown  Fixt.,  Append.  A. 

[In  Be  DeFalbe  [1901],  1  Ch.,  523,  seven  pieces  of  tapestry  were  held 
not  to  pass  to  the  remainderman.  They  were  affixed  to  the  walls  by  the 
life  tenant  as  follows:  Small  slips  of  wood  were  nailed  and  screwed  to 
the  original  wooden  casing  or  walls,  and  over  these  slips  canvas  was 
stretched  and  nailed,  and  the  tapestries  were  tacked  to  this  framework. 
Mouldings  were  fixed  round  the  tapestries,  and  pillars  were  set  up  with 
panels  between  them,  to  fill  up  the  space  not  occupied  by  the  tapestries, 
and  to  set  them  off.  Per  Vaughan  Williams,  L.  J.:  "The  quantum  of 
fixture  is  important.  *  *  You  might  have  to  employ  a  mode  of  fixing 
M-hich  in  many  cases  would  be  conclusive  of  the  incorporation  of  the  chattel 
with  the  freehold.  But  the  moment  you  come  to  the  conclusion  that  the 
mode  of  fixing  which  was  employed  was  absolutely  necessary  for  the  enjoy- 
ment of  the  chattel,  that  inference  does  not  arise.  *  »  I  wish  to  say 
a  word  about  D'Eyncourt  v.  Gregory  and  Norton  v.  Dashwood.  I  cannot 
find  that  either  Lord  Romilly,  M.  R.,  or  Chitty,  J.,  said  anything  which 
is  infonsistont  with  the  principle  T  have  sought  to  imply.  *  *  Lord 
Romilly  inferred  from  all  the  facts  of  that  case  that  the  tapestries  wore 
affixed  as  they  were  to  the  walls  for  the  purpose  of  the  improvement  of  the 
freehold,  and  not  for  the  purpose  of  their  enjoyment  :is  diattols. "  Per 
Rigby,  Tj.  J.:  "There  is  another  equally  important  and  well  established 
exception  from  the  rule,  in  the  case  of  artielcs  which  have  been  aflixod  to 
the  freehold,  not  with  the  object  of  enhancing  its  value,  but  for  the  pur- 

277 


♦193  THE  LAW  OF  FIXTURES.  [CIIAP,  V. 

[*193]  *fied  condition  then  the  demised  estates  and  all  the  ar- 
ticles thereby  made  heir-looms  were  to  go  in  the  same  manner 
as  if  the  limitations  in  favor  of  the  person  not  performing  such 
condition  had  not  been  inserted  in  the  will.  After  the  testa- 
tor's death  A.  became  tenant  for  life  of  both  the  settled  and 
demised  estates,  and  on  his  death  the  settled  estates  devolved 
on  B.,  who  did  not  fulfill  the  specified  condition,  upon  which  the 
shifting  clause  took  efit'ect  in  favor  of  C. ;  and  therefore  the 
question  arose  as  between  B.  and  C,  what  were  the  articles 
which  the  testator  could  dispose  of.  The  articles  upon  which 
the  principal  questions  arose  were  described  substantially  as 
follows : 

The  portrait  in  oil  in  the  great  hall,  on  canvas  and  stretcher, 
was  screwed  by  nails  or  screws  to  blocks  or  plugs  of  wood  in- 
serted in  the  brick-work;  a  wooden  moulding  was  placed  upon 
the  front  of  the  picture,  one  portion  of  such  wooden  moulding 
being  next  the  picture  and  the  other  flush  with  the  wainscoting 
of  the  room,  such  moulding  being  attached  by  screws  or  nails 
to  wooden  plugs  in  the  wall;  a  wooden  frame  was  placed  over 

pose  of  ornamentation.  *  *  In  all  such  cases  the  object  (whatever  it 
may  be)  which  is  affixed  for  the  purposes  of  ornamentation,  is  affixed  to 
the  freehold,  but  the  exception  allows  it  to  be  removed.  *  *  At  any 
rate,  I  think  that  the  decision  in  D'Eyncourt  v.  Gregory  is  not  right  if 
it  would  apply  to  such  a  case  as  the  present.  *  *  In  taking  down  the 
tapestries  some  trifling  damage  may  have  been  done  to  the  walls,  *  *  * 
the  damage  ought  to  be  allowed  or  made  good  by  the  executor.  I  do  not 
agree  that  the  respondent  should  have  consequential  damages  for  redecorat- 
ing the  room."     Aff'd  Leigh  v.  Taylor  [1902],  A.  C,  157.] 

[In  a  contest  between  a  trustee  in  bankruptcy  of  a  deceased  tenant  for 
life,  and  the  remainderman,  it  was  held  that  a  collection  of  stuffed  birds 
attached  by  glue  or  wire  to  cases  which  were  a  part  of  the  house,  was  not 
a  part  of  the  freehold.  Hill  v.  Bullock  [1897],  2  Ch.,  483,  aff'g  [1897] 
2   Ch.,   55.] 

[A  "trophy"  consisting  of  the  uniform  and  accoutrements  of  King 
George  III.  in  a  case  affixed  to  the  wall,  pass  to  the  trustee  of  a  deceased 
tenant  for  life  as  against  the  remainderman.  Hill  v.  Bullock  [1897],  2 
Ch.,  55.] 

[An  altar  stone,  not  physically  attached,  and  a  ease  of  relies  placed  in 
a  cavity  under  the  altar,  all  forming  part  of  a  chapel  as  used  for  religious 
purposes,  seem  to  belong  to  the  remainderman  as  against  the  personal 
representative  of  the  tenant  for  life.  Petre  v.  Ferrers  (1891),  Weekly 
Notes,  171.] 

278 


CHAP,  v.]  ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *194 

such  moulding  and  attached  thereto  and  to  the  wainscoting  of  the 
room  by  screws  or  nails,  the  heads  of  which  were  afterwards 
stopped  and  gilded  with  the  frame.  This  painting  and  gilt 
frame  could  be  easily  removed  without  damage,  and  if  the  paint- 
ing were  removed  and  the  framework  filled  in  with  figured  satin 
in  the  same  manner  as  were  all  the  other  panels  in  this  room, 
it  would  be  a  counterpart  of  them,  the  moulding  round  tlie 
painting  being  exactly  similar  to  those  which  were  round  the 
satin-lined  panels. 

The  tapestries  were  each  on  wooden  stretchers  attached  to 
the  wall  in  a  similar  manner  to  that  described  with  regard  to 
the  portrait,  that  being  the  usual  method  where  the  walls  are 
recessed.  Painted  wooden  mouldings  were  then  placed  round 
the  face  of  such  tapestries  substantially  in  the  same  manner  as 
above  described  with  reference  to  the  portrait,  and  the  tapes- 
tries could  be  very  easily  removed  and  the  mouldings  replaced 
if  required  without  material  damage  to  the  walls  or  paneling  of 
the  room.  The  room  had  enriched  panels,  and  if  the  panels 
from  which  it  was  desired  to  remove  the  tapestries  were 
•ornamented  in  the  same  style,  it  would  make  a  per-  [*194] 
fectly  complete  apartment  as  far  as  these  walls  were  concerned. 
The  chimney-glass  in  an  ornamental  frame  and  an  oil  paint- 
ing surmounting  it  were  placed  against  the  flush  face  of  the 
wall  and  attached  with  nails  or  screws  only,  as  an  ordinary 
looking-glass  would  be  fixed,  and  could  be  easily  taken  down. 

The  carved  and  gilt  frames  filled  with  white  satin  occupied 
the  side  of  a  room  and  were  placed  and  attached  in  the  same 
manner  as  the  chimney-glass,  and  could  easily  be  removed  with- 
out damage. 

The  carved  kneeling  figures  in  the  great  hall  Avere  placed 
upon  pedestals  forming  parts  of  the  cedar  stair-case.  They 
were  formed  of  cedar,  and  were  hollow;  and  the  figures  where 
attached  to  them  were  hollow,  and  were  so  attached  by  a  few 
screws  only.  The  figures  wore  evidently  not  designed  to  rest 
upon  the  particular  pedestals  which  they  then  occupied,  as  the 
plyntlis  of  the  figures  and  the  tops  of  the  pedestals  did  not 
accord  in  their  pr()i)()rtions.  The  figures  could  easily  be  lifted 
off  the  pedestals  witliout  damage. 

The  sculptured  marble  vases  in  the  ball  li;id  the  appearance 
of  resting  upon  massive  cedar  pedestals,  but  the   cedar-work 

279 


•195  THE  LAW  OF  FIXTURES.  [CHAP.  V. 

^vas  moroly  a  casing  built  round  the  real  supports  or  piers 
upon  which  the  vases  stood,  which  being  of  great  weight  rested 
upon  piers  probably  of  brick-work,  the  cedar  casing  being  cut 
and  fitted  round  the  bases  of  the  vases.  The  great  weight  of 
these  vases  rendered  the  use  of  mortar,  cement  or  other  ma- 
terial, wholly  unnecessary  for  the  purpose  of  attaching  them 
to  the  pedestals,  and  they  were  not  fixed  or  fastened  in  any 
manner  save  by  a  beading  of  cedar  wood,  and  could  be  lifted 
ofl:"  the  pedestals  without  damage  to  the  freehold,  and  the  ped- 
estals would  only  require  new  tops  to  render  them  fit  to  receive 
any  other  objects  that  might  be  placed  on  them. 

The  pair  of  lions  three  feet  high  at  the  head  of  the  flight  of 
steps  in  the  garden  were  of  sculptured  marble,  and  of  very  great 
weight,  and  simply  rested  on  stone  pieces  or  pillars,  and  had 
no  appearance  of  being  attached  except  by  their  own  weight, 
[*195]  *and  could  easily  have  been  lifted  off  without  damage  to 
the  said  stone  piers. 

The  stone  garden  seats  were  marble  slabs  of  great  weight, 
each  resting  on  three  stone  supports  or  uprights  sunk  a  short 
distance  in  the  earth,  and  retained  in  their  proper  position 
solely  by  their  great  weight,  and  could  easily  be  lifted  off  with- 
out damage  to  them  or  the  supports. 

In  delivering  his  judgment,  Tiord  Romilly,  M.  E.,  referring 
to  these  articles,  said :  ' '  The  first  of  these  which  I  think  proper- 
to  mention  is  the  tapestry  which  was  put  up  by  the  testator, 
Gregory  Gregory,  himself.  It  is  clear  that  the  testator  could 
not  have  disposed  of  paper  affixed  to  the  walls,  nor,  if  he  had 
used  silk  instead  of  paper  for  lining  the  walls,  he  could  not,  in 
my  opinion,  have  removed  the  silk.  So,  if  the  testator  had 
covered  the  walls  of  the  house  with  paneling,  he  could  not,  in 
my  opinion,  have  removed  the  paneling  and  have  left  the  walls 
bare.  If  he  caused  them  to  be  painted  in  fresco,  he  could  not 
have  removed  the  paintings,  and  I  think  if  he  had  caused  the 
panels  to  be  painted  he  could  not  have  removed  the  painting 
any  more  than  if  he  had  put  in  panels  already  painted,  and 
fixed  them  close  to  the  wall.  In  all  these  cases  I  think  they 
must  be  considered  to  be  fixtures  not  removable  by  the  tenant 
for  life.  Upon  considering  the  case  of  the  tapestries  already 
fixed  at  the  death  of  Gregory  Gregory,  I  have  come  to  the  con- 
clusion that  these  fall  within  the  description  of  such  matters 

280 


CHAP,   v.]  ORNAMENTAL    AND    DOMESTIC    FIXTURES.  *196 

as  those  I  have  just  enumerated,  and  that  they  could  not  be 
removed;  in  other  words  that  the  testator  himself  could  not 
have  been  allowed  to  remove  them.  [His  Lordship  then  read 
*  *  the  description  of  the  mode  in  which  the  tapestries  were 
fastened.]  Although  this  is  not  as  complete  as  if  the  tapestries 
were  actually  affixed  to  and  inseparable  from  the  walls  them- 
selves, which,  I  apprehend,  is  never  done,  still  I  think  they  must 
be  treated  as  part  of  the  wall  itself,  and  by  so  placing  them  Mr. 
Gregory  Gregory  deprived  himself  of  the  power  of  removing 
them. 

*'In  the  same  class  with  these  tapestries  is  the  portrait  of 
Lady  Williams.  [Ilis  Lordship  then  read  the  description.] 
The  observation  that  'the  painting  and  gilt  frame  may  be 
*removed  easily  and  without  damage,  and  if  the  paint-  [*196] 
ing  were  removed,  and  the  framework  were  filled  in  with  figured 
satin  in  the  same  manner  as  all  the  other  panels  in  the  room' 
is,  in  my  opinion,  very  pregnant.  Both  the  painting  and  the 
tapestries  could  be  removed  unquestionably  in  this  sense,  that 
they  could  be  taken  down,  and  the  space  left  or  filled  with  satin, 
and  so  likewise  the  satin  in  the  frames  could  be  taken  down,  and 
the  gaps  replaced  by  paper  in  the  same  manner  as  the  tapestry 
might  be  replaced  with  satin ;  whereas  this  paper,  being  stuck 
close  to  the  wall,  could  not  be  removed;  but  in  my  opinion,  in 
all  these  cases,  whether  it  is  the  paper  or  the  satin,  or  the  panels 
or  the  tapestry,  they  are  all  part  of  the  wall  itself,  and  they 
are  fixtures  not  to  be  removed.  In  all  these  cases  the  question 
is  not  whether  the  thing  itself  is  easily  removable,  but  whether 
it  is  essentially  a  part  of  the  building  itself  from  which  it  is 
proposed  to  remove  it,  as  in  the  familiar  instance  of  the  griiul- 
ing-stone  of  a  flour-mill,  which  is  easily  removable,  but  which 
is  nevertheless  a  part  of  the  mill  itself,  and  goes  to  the  heir 
and  not  to  the  legal  personal  representative. 

"The  chimney-glass  and  the  ornamental  frame,  and  the  oil- 
painting  surmounting  it,  appear  to  me  to  be  no  part  of  the 
house  itself,  or  of  the  wall  itself,  but  to  be  merely  ornaments 
attached  to  it,  which  the  testator  might  havo  removed. 

"The  carved  and  gilt  frames  filled  with  blue  and  white  satin, 
as  I  understand  the  evidence,  fall  exactly  in  the  same  category 
as  the  tapestry,  and  are  in  fact,   instead  of  what  is  usually 

281 


*197  THE  IxiVW  OP  FIXTURES.  [CIIAP.   V. 

paper,  a  covering  of  the  walls  and  form  part  of  the  walls  them- 
selves. 

"With  respect  to  the  carved  kneeling:  figures  on  the  staircase 
in  the  great  hall,  and  the  sculptured  marble  vases  in  the  hall, 
they  appear  to  me  to  come  within  the  category  of  articles  that 
cannot  be  removed.  I  think  it  does  not  depend  on  whether 
any  cement  is  used  for  fixing  these  articles,  or  whether  they 
rest  by  their  own  weight,  but  upon  this:  whether  they  are 
strictly  and  properly  part  of  the  architectural  design  for  the 
hall  and  staircase  itself,  and  put  in  there  as  such,  as  distin- 
guished from  mere  ornaments  to  be  afterwards  added.  There 
[*197]  *may  be  mansions  in  England  on  which  statues  may  be 
placed  in  order  to  complete  the  architectural  design  as  dis- 
tinguished from  mere  ornament;  and  when  they  are  so  placed, 
as,  for  instance,  they  are  in  the  cathedral  of  Milan,  I  should 
consider  that  they  could  not  properly  be  removed,  al  though  they 
were  fixed  without  cement  or  without  brackets,  and  stand  by 
their  weight  alone.  In  such  a  case  they  resemble  the  stone  of 
a  mill  which  is  part  of  the  mill  itself  and  goes  to  the  heir-at-law. 
I  admit  that  the  distinction  between  such  statues  as  are  added 
by  way  of  ornament,  and  such  as  belong  to  an  architectural 
design,  and  form  part  of  the  design  itself,  is  extremely  thin, 
and  that  in  many  cases  it  would  be  difficult  to  distinguish  them, 
unless  it  were  done  in  an  arbitrary  manner,  so  closely  might 
one  run  into  the  other.  But  I  am  unable  to  suggest  any  other 
mode  by  which  the  true  construction  can  be  defined  more  accu- 
rately than  that  which  I  have  already  stated.  Accordingly 
evidence  must  in  every  case  determine  whether  the  article  falls 
within  or  without  the  line.  In  the  present  case  I  have  thought 
the  articles  which  I  have  mentioned  are  not  removable,  relying 
upon  the  evidence  given  and  the  drawings  laid  before  me. 

"The  same  rule  will  apply  to  the  lions  at  the  head  of  the 
flight  of  steps  in  the  garden,  and  the  sixteen  stone  garden  seats 
in  the  garden  itself.  These,  in  my  opinion,  must  go  with  the 
estate,  and  are  not  separable  as  mere  loose  personal  chattels." 

The  grounds  of  this  decision,  it  will  be  observed,  are  that 
the  tapestries,  the  portraits  fixed  in  a  panel,  and  the  frames 
filled  with  satin  put  up  by  the  testator  and  which  were  held  to 
be  in  law  irremovable  were,  though  physically  capable  of  being 
easily  removed,  ewentially  a  part  of  the  building  itself  from 

282 


CHAP,  v.]  ORNAMENTAL    AND    DOMESTIC    FIXTURES. 


198 


which  it  was  proposed  to  remove  them,  and  the  fact  that  these 
annexations  were  in  themselves  ornamental  and  capable  of  being 
easily  removed  was  deemed  immaterial  in  determining  the  ques- 
tion.i 

The  carved  figures  on  the  staircase,  the  marble  vases  in  the 
hall,  the  lions  at  the  head  of  the  flight  of  steps  in  the  garden, 
*and  the  stone  garden-seats,  were  also  held  irremovable  [*198] 
in  law  (though  in  fact  easily  removable)  on  the  ground  that 
they  were  strictly  and  properly  part  of  the  architectural  design, 
and  were  placed  there  as  such,  as  distinguished  from  mere  orna- 
ments, and  so  constituted  an  integral  part  of  the  estate. 

This  case  well  exemplifies  the  doctrine  already  stated,  that 
the  tendency  and  weight  of  modern  authority  is  to  give  a  con- 
trolling influence  to  the  intention  of  the  party  making  the  an- 
nexation ;  and  it  is  fairly  inferable  from  the  case  that  had  the 
above  articles  not  been  designed  to  be  an  integral  part  of 
and  a  permanent  accession  to  the  estate,  but  annexed  merely 
by  way  of  ornament,  they  might  have  been  disposed  of  by  the 
testator,  as  was  allowed  in  the  case  of  the  chimney-glass,  and 
the  ornamental  frame  and  painting  surmounting  it,  though  at- 
tached to  the  wall  in  the  same  manner  as  the  frames  filled  with 
satin  which  were  held  to  be  irremovable.  The  case  is  believed 
to  be  an  authority  to  establish  the  right  of  removal  of  articles 
annexed  by  the  tenant  for  life  merely  by  way  of  ornament, 
and  which  are  not  intended  as  an  integral  part  of,  or  as  a 
permanent  accession  to,  the  realty,  when  such  removal  can  be 
effected  without  material  injury  to  the  realty  or  to  the  articles 
so  annexed.  Further  than  this  the  authorities  at  present  do 
not  warrant  us  in  going. 

On  the  other  hand  a  tenant  for  life  or  his  representatives  is 
not  entitled  to  remove  buildings  of  a  permanent  character;  and 
that  permanency  may  be  predicated  of  all  buildings  which  ap- 
pear either  by  the  intention  of  the  party  erecting  them,  the  man- 
ner of  attachment  to  the  soil  or  the  uses  to  which  they  are  put, 
to  have  been  designed  as  additions  to  the  freehold  or  to  enhance 
its  income  or  convenience.^ 

1  See,  also,  Steuart  v.  DouRlas  (1870),  Appendix  A.  Brown,  Fixt.,  p. 
217    (3<1  od.). 

2  Per  Cooper  Ch.,  in  Cannon  v.  TIare,  1  Tonn.  Ch.,  22  (1872),  where  it 
was  held,  that  buildings   erected  on    a    dower   estate   1>y    tlic   <lowress   or 

2S3 


•198  TUE  LAW  OF  FIXTURES.  [CIIAl'.   V. 

tenants  claiming  under  bcr  "not  for  the  furtberaiue  of  the  trade  or  busi- 
ness of  the  lessee,  but  merely  with  a  view  to  the  yearly  value  or  income 
from  the  land  by  being  leased  or  used  for  dwellings,"  pass  on  the  death 
of  the  tenant  for  life  to  the  remainderman.  In  this  case  the  lessee  of  the 
dowress  erected  on  a  city  lot  a  row  of  buildings  framed  in  the  shop,  each 
part  marked  for  its  particular  position,  and  raised,  and  finished  without 
further  framing,  on  a  brick  foundation,  with  brick  chimneys  and  composi- 
tion roof  entire,  and  rented  the  lower  rooms  for  stores  and  the  upper  for 
bedrooms.  On  the  death  of  the  dowress  these  buildings  passed  to  the 
remainderman  with  the  land.  See,  also,  Doak  v.  Wiswell,  38  Me.,  569 
(1S54)  ;  Haflick  v.  Stober,  11  Ohio  St.,  482  (1860)  ;  McCullough  v.  Irvine, 
13  Penn.  St.,  438  (1850);  Glidden  v.  Bennett,  43  N.  H.,  306  (1861). 
[See  Schimpf  v.  Ehodewald,  62  Neb.,  105,  113   (1901).] 

[A  lessee  of  a  life  tenant  erected  a  large  frame  building  upon  a  good, 
firm  foundation,  and  connected  the  same  with  the  street  sewerage.  Held, 
that  such  building  could  not  be  removed  by  the  lessee  as  against  the 
remainderman,  upon  the  death  of  the  life  tenant  terminating  the  lease. 
Jones  V.  Shufilin,  45  W.  Va.,   729    (1898).] 

[Where  a  purchaser,  by  warranty  deed,  from  a  life  tenant,  erects  build- 
ings and  other  valuable  improvements  under  the  impression  that  he  has 
title  in  fee-simple,  such  improvements,  upon  the  death  of  the  cestui  que 
vie,  pass  with  the  land  to  the  remainderman.  Pickett  v.  Pope,  74  Ala., 
122   (1883).] 

[Where  a  life  tenant  agrees  to  purchase,  at  the  expiration  of  a  lease 
made  by  him,  buildings  erected  by  his  lessee,  the  remainderman,  upon  the 
death  of  the  life  tenant,  takes  them  without  any  liability  to  recompense. 
Chilvers  v.  Eace,  196  111.,  71,  82   (1902).] 

[Buildings  were  erected  under  an  agreement  between  the  builder  and  a 
tenant  by  the  curtesy  that  the  builder  might  remove  them,  which  he  did 
after  the  death  of  the  life  tenant.  Held,  that  the  heir  could  recover  the 
value  of  the  buildings  removed.     Demby  v.  Parse,  53  Ark.,  526  (1890).] 

In  Clemence  v.  Steere,  1  R.  I.,  272  (1850),  it  was  held,  that  the  removal 
of  a  crib  placed  by  a  life  tenant  upon  a  rock  and  not  affixed  to  the  free- 
hold, was  not  waste.     See,  also,  6  Law  Mag.   (London),  95   (1831). 

[Where  a  railroad  company  purchases  land  from  a  life  tenant,  and  con- 
structs a  track  thereon,  upon  the  death  of  the  life  tenant  such  structures 
do  not  pass  to  the  remainderman.  Charleston  R'y  Co.  v.  Hughes,  105  Ga., 
1,  25   (1898).] 

[Structures  erected  by  permission  of  the  tenant  for  life  which  remain 
the  property  of  the  builder,  do  not  pass  to  the  remainderman.  Chicago  & 
Alton  E.  E.  Co.  v.  Goodwin,  111  111.,  273,  281   (1884).] 


284 


CHAP,  v.]         ECCLESIASTICAL  PERSONS — DILAPIDATIONS. 


199 


*IV.    Of  THE  Right  of  Ecclesiastical  Persons  and     [*199] 
THEIR   Representatrt:s   to   Fixtures.— Dilapidations. 

The  cases  of  fixtures  put  up  by  ecclesiastical  persons,  and 
the  subject  of  dilapidations,   though   in  some  respects   distin- 
guishable from  the  case  of  annexations  by  tenants  for  life  or 
in  tail,  may  be  conveniently    considered    in    this    connection. 
This  subject    (except  in  one  case  hereinafter  cited)    does  not 
seem  to  have  been  at  all  considered  by  the  courts  in  the  United 
States;   and  under  the  prevailing  policy   adopted  in  relation 
thereto  it  can  never  be  a  subject  of  any  practical  importance  in 
this  country.     But,  as  this  work  might  be  deemed  incomplete 
were  the  subject  entirely  passed  over,  the  author  cannot,  per- 
haps, do  better  than  to  present  in  this  connection  the  observa- 
tions of  Mr.  Ferardi  on  the  subject,  with  such  remarks  in  rela- 
tion thereto  as  seem  warranted  by  cases  since  decided  in  Eng- 
land:    "The  claims  arising  between  these  persons  and  their 
successors  in  respect  of  annexations  made  by  them  to  the  free- 
hold, seem  very  nearly  to  resemble  those  which  have  been  the 
subject  of  the  preceding  sections.2     And,  accordingly.  Bishop 
Gibson  in  his  Codex,^  in  treating  of  dilapidations,  refers  to  the 
cases  of  Beck  v.  Rebow,  Cave  v.  Cave,  and  Herlakenden's  Case, 
which  have  frequently  been  cited  in  this  treatise.^     And  he 
says  that,  'he  sets  them  down  as  parallel  to  the  disputes  which 
sometimes  happen  between  succeeding  incumbents  and  execu- 
tors of  their  predecessors,   as  to  what  may  or  may    not    be 
•taken  away,  and  how   far  the  taking  of  them  away    [*200] 
shall  be  accounted  dilapidation.' 

"The  questions  generally  in  dispute  between  ecclesiastical 
persons,  relate  to  matters  of  ornament  or  convenience  erected 
in  the  parsonage-house,  etc.,  by  the  resident  incumbent.  And 
with  respect  to  things  of  this  description,  it  is  laid  down  by 
the  author  of  the  Ecclesiastical  Law,'"'  that  'if  an  incinnbent 
enter  upon  a   parsonage-house,   in  which  there   are  hangings, 

1  Ferard  Fixt.,  145,  et  seq. 

2  Relating  to  tenants  for  life  and  in  tail  and   their  representatives. 
8  Gibson '8  Cod.  Jur.  Eccl.,  p.  752, 

«  See  post,  Heir  and  Executor. 

6  4  Burn's  Eccl.  Law  (9th  Lend.  Ed,),  413. 

285 


*201  THE  LAW  OF  FIXTURES.  [CHAP.  V. 

grates,  iron  backs  to  chimneys,  and  such  like,  not  put  there 
by  the  last  incumbent,  but  which  have  gone  from  successor  to 
successor,  the  executor  of  the  last  incumbent  shall  not  have 
them,  but  it  seemeth  they  shall  continue  in  the  nature  of  heir- 
looms; but  if  the  last  incumbent  fixed  them  there  only  for  his 
own  convenience,  it  seemeth  they  shall  be  deemed  as  furniture, 
or  household  goods,  and  shall  go  to  his  executor.'*' 

"It  may,  therefore,  it  is  conceived,  be  laid  down  that  an  in- 
cumbent or  his  executor  will  in  general  be  entitled  to  fixtures 
of  the  same  description  as  those  which  form  part  of  the  per- 
sonal estate  of  a  deceased  tenant  for  life,  and  which  have  been 
described  in  the  second  section  of  this  chapter. '  '^ 

The  principle  last  above  stated  was  questioned  in  an  article 
upon  the  subject  in  volume  VI.  of  the  (London)  Law  Magazine 
for  1831,  on  pages  98  et  seq.,  where  the  opinion  was  expressed 
that  the  duty  of  an  incumbent  to  maintain,  repair  and  restore 
his  parsonage,  extended  not  only  to  the  main  walls  and  tim- 
bers, but  to  all  fixtures  for  domestic  use  and  convenience,  which 
contribute  to  render  it  a  suitable  residence  for  the  incumbent; 
and  that,  although  he  w^ere  to  annex  fixtures  de  novo,  which 
had  no  place  before,  yet,  if  they  were  for  convenience  and  do- 
mestic use,  and  suitable  to  the  parsonage,  it  was  questionable 
whether  a  court  would  allow  them  to  be  removed.^  There 
[*201]  *seems,  however,  to  be  no  question  (and  it  is  so  stated 
in  said  article),  but  that  an  incumbent  may  remove  fixtures 
serving  for  mere  ornament  or  luxury,  for  he  is  "not  bound  to 
supply  or  maintain  anything  in  the  nature  of  ornament. '  '^  And 
there  seems  to  be  no  good  reason  for  any  such  distinction  as  is 
suggested  in  the  article  referred  to  with  reference  to  articles  of 
convenience  and  domestic  use;  nor  has  any  authority  been  dis- 

6  It  seems  that  window-blinds  and  a  stove  put  into  a  parsonage  by  the 
incumbent  who  was  seized  thereof  in  fee  in  right  of  the  parish,  are  not 
necessarily  a  part  of  the  freehold,  and  may  be  removed  by  the  incumbent 
on  the  termination  of  his  pastoral  relation.  Greene  v.  Maiden,  10  Pick., 
500,  504   (1830). 

7  Part  I.,  chap.  3. 

8 See  Gibb.  Fixt.,  13,-  Grady  Fixt.,  178. 
See,  however,  Greene  v.  Maiden  (supra). 

9  See  Gibb.  Fixt.,  13;  Wise  v.  Metcalfe,  10  B.  &  C.,  299  (1829),  cited 
(post). 

286 


CHAP,  v.]         ECCLESIASTICAL  PERSONS — DILAPIDATIONS. 


^202 


covered  in  opposition  to  the  statement  above  quoted  from  the 
work  of  Mr,  Ferard,  and  supporting  the  distinction  above  stated. 

But  the  ornaments  of  the  chapel  of  a  preceding  bishop  being 
considered  as  in  a  manner  fixed  to  the  realty  and  in  the  nature 
of  heir-looms,  belong  to  the  succeeding  bishop,  and  are  merely 
in  succession;  although  other  chattels  in  the  case  of  a  sole  cor- 
poration belong  to  the  executors  of  the  deceased  party. ^"^ 

The  rule  allowing  an  incumbent  or  his  personal  representa- 
tives to  remove  fixtures  erected  for  purposes  of  ornament  or 
luxury  merely,  has  also  been  extended  to  allow  the  removal 
of  hot-houses,  pineries,  conservatories,  and  similar  buildings 
erected  for  said  purposes,  where  they  are  capable  of  being  re- 
moved without  injury  to  the  freehold. 

In  the  case  of  ]\Iartin  v.  Roe,^^  the  subject  was  quite  exten- 
sively considered.  In  this  case  an  incumbent  erected  in  the 
garden  of  the  rectory  apart  from  the  rectory  house,  two  hot- 
houses respectively  about  twenty-three  and  forty-seven  feet  in 
length  by  fifteen  and  seventeen  in  width,  consisting  of  a  frame 
and  glass-work  about  ten  feet  high  (the  glass-work  sliding  up 
and  down  by  pUllies),  resting  on  brick  walls  about  two  feet 
high  and  bedded  in  mortar  thereon.  After  the  death  of  the 
incumbent  his  executors  claimed  the  frame-work  and  glass- 
work  and  removed  it  from  the  mortar  in  which  it  was  bedded 
on  the  brick  wall,  doing  no  damage  except  what  was  necessa- 
•rily  done  to  the  mortar  in  the  removal.  The  defendant  [*202] 
took  the  same  out  of  their  possession,  claiming  that  it  belonged 
to  him  as  rector;  and  it  was  held  that  the  incumbent  or  his 
executors  might  remove  such  annexations  within  a  reasonable 
time  after  his  death  without  incurring  liability  for  either  waste 
or  dilapidation.  In  delivering  the  opinion  of  the  court,  Lord 
Campbell,  C.  J.,  after  cpioting  approvingly  the  rule  last  above 
quoted  from  the  work  of  Mr.  Ferard,  said:  "It  nuiy  be  worth 
observing  that  there  is  this  distinction  between  an  incumbent 
and  an  ordinary  tenant  for  life:  that  the  former  has  at  no  time 
any  reversioner  with  any  present  interests  or  rights,  whereas, 

loBisliop  of  Carlisle's  Case,  21  Edw.  3,  48  b  (1340),  cited  in  Corven 's 
Case,  12  Co.,  105.  See,  also,  Fulwood's  Case,  4  Co.,  65  a  (1591).  [See 
Petre  v.  Ferrers  (1891),  Weekly  Notes,  171.] 

11  7  Ell.  &  Bl.,  237,  247  (1857)  ;  s.  C,  3  Jur.  (N.  S.),  465;  26  L.  J.,  Q. 
B.,  129;  40  Eng.  L.  &  Eq.,  68.     See,  also,  6  Law  Mag.,  102. 

287 


*203  THE  LAW  OF  FIXTURES.  [CIIAP,  V. 

when  tlio  latter  annexes  anything  to  the  freehold  or  in  any 
way  meddles  with  it,  he  annexes  to  or  meddles  with  that  in 
whieh  some  other  person  or  persons  has  or  have  at  the  moment 
an  existing  interest  whieh  may  be  increased  or  decreased  in 
value  by  what  he  does,  and  which  the  law  wall  protect.^-  But 
neither  the  patron  of  the  benefice  nor  the  future  unknown  suc- 
cessor has  any  such  interest  in  the  parsonage  or  glebe;  if  any 
one  can  interfere  it  is  the  ordinary;  and  he  not  in  respect  of 
any  interest  vested  in  him,  but  to  advance  the  general  public 
object  of  endowments  to  the  clergy.  This  seems  a  reason  for 
enlarging  the  rule  as  between  the  executor  and  successor,  where 
the  subject-matter  in  dispute  is  not  of  a  kind  that  can  be  con- 
sidered as  inalienably  attached  to  the  benefice,  as  in  such  case 
there  w^ould  be  no  ground  even  for  the  interference  of  the  ordi- 
nary. Suppose  the  case  of  an  observatory,  which  an  incumbent 
having  built  should  take  down  again;  it  w'ould  be  absurd  to 
talk  of  the  ordinary  interfering  to  prevent  him.  When,  how- 
ever, the  cases  between  the  executor  of  tenant  for  life  and 
remainderman  are  looked  into,  they  will  be  found  to  turn  each 
on  its  peculiar  circumstances;  the  character,  the  use,  the  mode 
of  attachment,  the  facility  of  severance,  the  injury  to  the  free- 
hold by  severance.  In  regard  to  an  ecclesiastical  benefice,  the 
character  and  object  of  the  building  to  which  the  chattel  is 
attached,  and  for  which  it  has  been  so  attached,  seem  of  very 
[*203]  *great  consequence  in  determining  whether  there  was 
any  intention  to  separate  it  permanently  and  irrevocably  from 
the  personal  estate.  Here  then  is  an  erection,  in  itself  purely 
matter  of  luxury  and  ornament,  which  the  testator  might  have 
pulled  down,  but  which  he  probably  wished  to  enjoy  so  long  as 
he  lived  in  the  benefice,  and  therefore  did  not  remove.  To 
this,  and  for  the  purpose  of  completing  that  luxurious  and 
ornamental  creation,  a  chattel  is  so  attached  that  it  may  be  de- 
tached without  injury  to  the  freehold.  We  think  the  inference 
is  that  it  never  ceased  to  be  a  chattel  during  the  testator's  life, 
that  it  continued  to  be  so  at  the  moment  of  his  death,  and 
therefore  passed  as  part  of  the  personal  estate  to  the  executors. 
Had  this  chattel  been  merely  screwed,  or  had  it  been,  as  a  tel- 

12  The  fee  simple  is  said  to  be  in  abeyance,  and  the  incumbent  in  truth 
to  be  but  a  tenant  for  life,  in  Huntley  v.  Russell,  13  Q.  B.,  572,  588 
(1849)  ;  s.  C,  13  Jur.,  837;  18  L.  J.,  Q.  B.,  239. 

288 


CHAP,   v.]         ECCLESIASTICAL  PERSONS — DIL.APIDATIONS.  *204 

escope  in  an  observatory,  strongly  secured,  as  such  instruments 
commonly  are,  to  what  is  part  of  the  building  itself,  we  think 
no  question  would  have  been  made.  And  this  seems  to  us  to 
present  no  substantial  difference  in  principle."  In  the  fore- 
going remarks  the  court  were  considering  the  subject  with 
reference  to  the  law  of  fixtures.  The  subject  of  dilapidation 
was  also  considerably  discussed  in  said  case,  and  the  case  will 
be  found  again  referred  to  below  in  that  connection. 

Buildings  erected  by  an  incumbent  for  purposes  other  than 
ornament  or  luxury,  where  they  are  not  fixed  to  the  freehold, 
are  held  to  be  removable  without  incurring  liability  for  waste 
or  dilapidation.^  ^ 

It  is  said,  however,  that  the  incumbent  of  a  benefice,  or  his 
executor,  can  have  no  right  to  trade  fixtures,  because  it  would 
be  unlawful  for  him  to  set  them  up.^^ 

Vrith  reference  to  the  subject  of  dilapidation  we  quote  from 
the  work  of  Mr.  Ferard,^^  as  follows:  "Dilapidation  is  a 
*kind  of  ecclesiastical  waste,  and  is  thus  defined  by  [*204] 
Degge  in  the  Parson's  Counselor,  p.  134:  'A  dilapidation  is  the 
pulling  down  or  destroying  in  any  manner  any  of  the  houses  or 
buildings  belonging  to  a  spiritual  living,  or  the  chancel;  or 
suffering  them  to  run  into  ruin  or  decay;  or  wasting  and  de- 
stroying the  woods  of  the  church,  or  committing  or  suffering 
any  willful  waste  in  or  upon  the  inheritance  of  the  church.' 
The  species  of  waste  that  constitutes  dilapidation  is  such  as  is 
committed  to  the  rectory-house,  barns,  out-buildings,  etc.,  be- 
longing thereto,  and  to  the  woods,  hedges  and  fences  of  the 
same;*^  as  also  to  the  chancel  of  the  church.  These  the  in- 
cumbent for  the  time  being  is  bound  to  keep  in  good  and  sub- 
stantial repair.     But  it  is  confined  to  these  things,  and  to  fix- 

13  Huntley  v.  Russell,  13  Q.  B.,  572  (1849) ;  s.  c,  13  Jur.,  837;  18  L.  J. 
(N.  S.),  Q.  B.,  239.  The  buildings  in  this  case  were  a  lean-to,  a  cottage, 
and  barn,  of  the  kind  known  in  that  part  of  the  country  as  "tenant- 
right"  buildings;  and  were  not  fixed  to  the  freehold,  but  rested  on  tho 
ground  or  rock,  or  on  bay  stones.  One  of  them  (as  appears  by  a  note) 
stood  partly  upon  posts  which  had  sunk  not  quite  a  foot  into  the  ground, 
tho  intention  of  tho  party  in  using  jxjsts  being  merely  to  prop  up  tho 
building  and  not  to  let  them  into  the  ground. 

i*Gibb.  Fixt.,  13. 

IB  p.  "147,  et  seq. 

16  4  M.  &  S.,  188;   2  Ad.  &  El.,  773. 
19  289 


*205  THE  LAW  OF  FIXTURES.  [CHAP.   V. 

tures  and  other  annexations  which  became  part  and  parcel  of 
the  freehold;  and,  therefore,  a  nei^lect  to  cultivate  the  glebe 
land  in  a  Inisband-Iike  manner  does  not  amount  to  dilapida- 
tion, "i" 

The  subject  of  dilapidation  was  also  considerably  discussed 
in  Martin  v.  Roe,  the  facts  of  which  have  already  been  stated 
in  this  section;  and  as  this  is  a  case  of  considerable  importance 
in  this  connection,  we  quote  from  the  opinion  of  the  court, 
which  was  delivered  by  Campbell,  C.  J.,  so  much  as  pertains 
to  this  subject:  "We  have  found  no  decision  nor  authority 
of  any  text-book  precisely  governing  this  case;  and  we  consider 
it  therefore  on  principle. 

"In  the  first  place,  it  seems  clear  that  had  the  testator  in  his 
lifetime  done  what  the  plaintiffs  have  done  since  his  death, 
the  defendant  could  not  have  sued  them  for  dilapidations.  The 
character  of  the  building  would  have  justified  the  incumbent 
in  the  removal  of  the  whole  of  it,  only  he  must  have  restored 
the  garden  to  its  former  condition  if  in  the  removal  he  had 
occasioned  any  injury  to  it  amounting  to  waste.  For  the  duty 
of  a  present  and  the  right  of  a  succeeding  incumbent,  as  such, 
are  correlative.  Any  matter  of  needless  expense,  or  luxury, 
or  ornament,  in  which  the  present  incumbent,  to  gratify  his 
owTi  taste,  has  indulged  himself  (blamably  or  not  is  im- 
[*205]  *material),  he  is  not  only  not  bound,  but  he  ought  not,  to 
transmit  to  his  successor.  If  the  successor  may  recover  damages 
from  the  executor  because  such  things  have  been  removed  by 
their  testator,  there  can  be  no  doubt  he,  in  his  turn,  must 
maintain  them;  and  what  he  must  maintain  he  must  also  re- 
store and  rebuild  when  decayed  by  his  fault;  and  so  the  bene- 
fice will  become  permanently  saddled  with  a  useless  burthen, 
and  an  indefinite,  it  may  be  ruinous  expense.  Hot-houses, 
pineries,  and  conservatories  do  not  in  this  respect  differ  from 
observatories,  menageries  or  aviaries;  they  are  equally  what 
in  a  provincial  constitution  of  1236,  21  H.  3,  cited  in  Wise 
V.  Metcalfe,  10  B.  &  C,  314,^ ^  are  called  impensoe  voluptuosoe, 
as  distinguished  from  necessariae.    The  parsonage  and  the  glebe 

"Bird  V.  Eelph,  4  B.  &  Ad.,  826  (1833). 

i«  The  words  appear  to  be  taken  from  Lyndwood's  Commentary  on  the 
Constitution,  Provinciale,  lib.   III.,  tit.  27,  p.   250    (ed.  1679),  not.  s. 

290 


CHAP,  v.]         ECCLESIASTICAL  PERSONS — DIL.\PIDATIONS.  *206 

are  for  the  decent  and  suitable  residence  and  sustenance  of  the 
incumbent,  and  are  to  be  maintained,  according  to  the  inten- 
tion of  the  law,  out  of  the  revenues  of  the  benefice.     This  par- 
sonage and  glebe  the  succeeding  incumbent  is  entitled  to  receive 
from  his  predecessor ;  the  former  of  such  convenience  and  char- 
acter as  he  found  it,  and  in  good  condition,  properly  repaired, 
or  even  rebuilt,  if  by  his  neglect  that  has  become  necessary ;  the 
latter  in  good  repair  and  order,  with  its  buildings  and  fences. 
^Yhatever  he  is  so  entitled  to  receive  he  must  transmit;  and  the 
extent  to  which,  in  any  particular  case,  this  reciprocal  right  and 
duty  will  go,  must  be  determined  by  a  liberal  and  sensible  con- 
sideration of  the  circumstances.     It  is  impossible,  from  the  na- 
ture of  the  thing,  to  lay  down  a  more  precise  rule.     Therefore 
cases  may  occur  which  are  near  the  dividing  line,  and  so  pre- 
sent a  practical  difficulty.    But  what  we  have  now  to  deal  with, 
namely,  hot-houses  nearly  seventy  feet  in  length,  present  none. 
The  testator  did  an  unnecessary,  probably  a  very  unwise  and 
unsuitable  act,  in  erecting  them;  and,  when  he  had  done  so, 
there  was  a  locus  poenitentiae.     Nothing  prevented  him  from 
removing  at  once  all  that  was  mere  fixture ;  and  this  is  all  that 
we  need  decide  now;   though,   as  we  have  already  intimated 
our    opinion,    we    should    have    no    difficulty    in  deciding,    if 
♦necessary,  that  he  might  have  removed  the  whole  erec-   [*206] 
tion."'*'     The  principle  upon  which  compensation  for  dilapida- 
tions is  to  be  estimated  was  stated  in  AVise  v.  Metcalfe^"  to  be 
that  "the  incumbent  was  bound  to  maintain  the  parsonage,  and 
also  the  chancel,  and  to  keep  them  in  good  substantial  repair, 
restoring  and  n-building,  when  necessary,  according  to  the  origi- 
nal form,  without  addition  or  modern  improvement ;  and  that  he 
was  not  bound  to  supply  or  maintain  anything  in  the  nature  of 
ornament,  to  which  painting  (unless  necessary  to  preserve  ex-, 
posed  timbers  from   decay)    and  white-washing'  and   papering 
belong." 

10  The  loarnod  jixlgo  romarks,  in  roncluding  this  branch  of  the  case,  that 
it  is  only  with  reference  to  the  strict  law  of  dilapidations  that  the  al)()ve 
remarks  must  be  considered  as  made.  The  subject  of  fixtures  as  discussed 
in  said  case,  has  already  been  presented    (ante)    in  tliis  section. 

20  10  B.  &  C,  299   (1829). 

See,  however,  dictum  of  Erie,  J.,  in  Huntley  v.  Russell,  13  Q.  ]\.,  i'u'l, 
585  (1849). 

291 


•207  THE  LAW  OF  FIXTURES.  [CHAP.  V. 

"The  remedy  for  dilapidation  is  in  its  nature  similar  to  that 
provided  ajjainst  the  owners  of  particuhir  estates.  For  bishops, 
rectors,  parsons,  vicars  and  other  ecck^siastical  persons,  are  con- 
sidered in  questions  respecting  the  waste  of  lands  which  they 
hold  jure  ccclcsiae,  as  tenants  for  life.^i  An  action  lies  at  the 
common  law  for  dilapidation,  upon  the  custom  of  the  realm  ;22 
though  the  right  to  sue  in  the  temporal  courts  was  not  settled 
till  the  case  of  Jones  v.  Hill  (3  Lev.,  268;  s.  c,  Carth.,  224 
[1690] ).  It  lies  also  in  the  spiritual  courts  by  the  canon  law,^^ 
and  remedies  have  moreover  been  provided  by  particular 
statutes,  13  Eliz.,  c.  10;  14  Eliz.,  c.  11;  17  Geo.  III.,  c.  53;  57 
Geo.  III.,  c.  99.2-1  Tj^g  action  may  be  brought  by  the  successor 
against  the  predecessor  if  living,  or  if  dead,  then  against  his 
executor,  etc.  The  action  against  the  executor  of  the  tort 
feasor  was  in  this  respect  an  anomaly,  and  an  exception  to 
[*207]  *the  general  rule  that  actio  personalis  morifAir  cum  per- 
sona. But  if  the  successor  have  not  the  legal  estate  in  the 
parsonage-house,  lands,  etc.,  he  cannot  bring  an  action  for  dilap- 
idations.25  If,  however,  the  successor,  being  entitled  to  the 
legal  estate,  is  put  into  possession  of  a  part  of  the  glebe,  it  is 
equivalent  to  an  induction  into  the  whole. 2 «  Upon  an  exchange 
of  livings  by  agreement  after  mutual  institution  and  induction, 
one  incumbent  may  sue  the  other  for  dilapidation;  and  this  al- 
though neither  party  at  the  time  may  have  contemplated  any 
such  claim.  For  they  have  the  same  rights  as  in  a  common 
case  of  presentation ;  and  it  cannot  be  implied  in  such  an  agree- 
ment that  either  party  was  not  to  be  liable  for  dilapidations.^^ 

2iFerard  Fixt.,  148,  citing  2  Eoll.  Ab.,  813;  Roll.  Eep.,  86;  Amb.,  176; 
2  Atk.,  217.     See   (ante)  pp.  *199,  *200  in  this  section. 
22Lil.  Ent.,  21,  67,  68;  2  Term,  630;  3  Bl.  Com.,  91. 

23  Respecting  the  proceedings  in  the  ecclesiastical  court,  see  Gibson 's 
Codex,  751,  et  seq.;  1499,  et  seq.;  and  3  Bl.  Com.,  91. 

24  It  is  said  also  to  be  good  cause  of  deprivation,  if  an  ecclesiastical 
person  dilapidates  the  patrimony  of  the  church.  3  Bl.  Com.,  91;  Degge, 
part  1,  ch.  8,  p.  92;  Wood's  Case,  cited  12  Mod.,  237;  3  Inst.,  204;  God- 
bolt,  259. 

25  Wright  V.  Smythies,  10  East,  409  (1809);  Browne  v.  Ramsden,  8 
Taunt.,  559   (1818)  ;   s.  C,  2  B.  Moore,  612. 

2fiBulwer  v.  Bulwer,  2  B.  &  Aid.,  470   (1819). 

27Downe8  v.  Craig,  9  M.  &  W.,  166  (1841).  And  see  this  case  as  to  the 
validity  of  an  agreement  to  waive  a  claim  for  dilapidations  under  such  cir- 
cumstances. 292 


CHAP,   v.]  WHEN  TO  BE  REMOVED.  *208 

A  prebendary  or  his  personal  representative,  is  liable  to  the 
successor  for  the  waste  of  a  prebendal  house.^s  So,  also,  a 
sequestrator  may  be  sued  for  dilapidations.^^  An  action  for 
dilapidations  lies  by  the  succeeding  vicar  against  his  predeces- 
sor, who  by  taking  a  benefice,  has  lost  his  vicarage. ^'^  But  it 
has  been  held,  that  a  curate  appointed  by  the  impropriator,  and 
licensed  by  the  archbishop,  but  not  instituted  or  inducted,  is  not 
liable  to  be  sued  for  dilapidations,  "^i 

*V.     Within   what   Time   the   Right   of  Removing     [*208] 
Fixtures  as  between  the  Personal  Representatives 
OF  Tenant  for  Life  or  in  Tail,  and  the  Re- 
mainderman  OR   Reversioner,   etc., 
MUST  BE  Exercised. 

There  do  not  seem  to  be  any  adjudications  bearing  directly 
upon  this  subject.  As  has  been  already  stated  in  a  prior  chap- 
ter,32  the  general  rule  that  the  right  of  removal  of  fixtures 
must  be  exercised  before  the  expiration  of  the  tenancy,  is  neces- 
sarily subject  to  exception  in  those  cases  where  the  tenancy 
is  of  uncertain  duration  and  liable  to  be  determined  by  the 
happening  of  some  contingent  or  uncertain  event  on  which  it 
depends,  as  in  the  case  of  a  tenancy  at  will.  And  in  analogy 
to  the  case  of  a  tenancy  at  will,  it  seems  that,  to  say  the  least, 
the  right  of  the  personal  representatives  of  a  deceased  tenant 

zsEadcliffe  v.  D'Oyly,  2  Term,  630  (1788). 

29  Hubbard  v.  Beckford,  1  Hag.  Consist.,  307  (1798);  WLinfield  v.  Wat- 
kins,  2  Phillim.,  1   (1812). 

30  Vin.  Abr.,  Dilapidations. 

31  Pawly  V.  Wiseman,  3  Keb.,  614  (1687).  For  further  information  Mr. 
Ferard  refers  to  Vin.  Abr.  Dilapidations,  with  Scrg.  Hill's  notes  in  Lin- 
coln's Inn  Library;  Stiliingfleet 's  Eccl.  Cases,  part  1,  p.  60,  et  seq.; 
Degge's  Parson's  Counsellor,  by  Ellis,  p.  134,  et  seq.;  Godolphin  Eep., 
173,  et  seq.;  Watson's  Complete  Incumbent,  p.  399;  Gibson's  Codex,  751, 
et  seq.;  Burns'  Eccl.  Law,  Dilapidations;  Woodcson 's  Vin.  Lect.,  Vol. 
III.,  205;  Cripp's  Treatise,  276,  et  seq.;  Bird  v.  Kelph,  2  Ad.  &  El.,  773 
(1835).  And  see  Stat.  13  Eliz.,  ch.  10;  14  Eliz.,  cb.  11;  17  Geo.  3,  ch.  53; 
57  Geo.  3,  cb.  99;  1  &  2  Vict.,  ch.  106,  sec.  41.  See,  also,  as  to  proceed- 
ings for  waste,  by  action,  and  by  prohibition  and  injunction,  in  the  second 
part  of  this  [Mr.  Ferard 's]  work;  also  Roll.  Rep.,  335;   11  Rep.,  49  a. 

32  Ante,  p.  "147. 

293 


•208  THE  LAW  OP  FIXTURES.  [CHAP.  V. 

for  life  or  in  tail  to  remove  the  fixtures  to  which  they  are  en- 
titled, is  not  terminated  until  after  the  expiration  of  a  reason- 
able time  after  the  death  of  the  person  whom  they  represent.33 
Whether  the  right  of  removal  shall  be  considered  to  extend 
further  than  this,  the  authorities  do  not  declare. 

With  reference  also  to  the  analogous  case  of  erections  made 
by  the  incumbent  of  an  ecclesiastical  benefice,  which  he  is  en- 
titled to  remove,  they  may  be  removed  by  his  executors  within 
a  reasonable  time  after  his  death.^^  If,  however,  he  voluntarily 
determines  his  own  interest,  as  by  a  resignation,  or  by  accepting 
a  benefice,  he  cannot,  it  seems,  afterwards  remove  anything 
affixed  to  the  freehold.^^  Such  has  been  held  to  be  the  case 
with  reference  to  the  emblements  where  a  parson  resigns  his 
living.36 

33  See  ante,  p.  *147,  and  cases  there  cited;  Gibb.  Fixt.,  12,  13;  Perard 
Fixt.,  136,  note  (citing  22  Edw.  IV.,  27,  and  Cro.  Jac,  204)  ;  Martin  v. 
Eoe,  7  Ell.  &  Bl.,  237   (1857)  ;  1  Wms.  Exrs.   (6th  London  ed.),  705. 

34  Martin  v.  Eoe   (supra)  ;   Grady  Fixt.,  178. 
35Ferard  Fixt.,  146;   Grady  Fixt.,  178. 

36Bulwer  v.  Bulwer,  2  B.  &  Aid.,  470  (1819);  see,  also,  Betham  v. 
Gregg,  10  Bing.,  352  (1833). 


294 


CHAPTER  VI.  [*209] 

OF  FIXTURES  AS  BETWEEN  HEIR  AND  EXECUTOR. 

The  authorities  all  agree  in  stating  that  the  rule  quicquid 
plantatur  solo,  solo  cedit,  is  applied  with  more  rigor  in  favor 
of  the  inheritance  as  between  executor  and  heir,  than  in  the 
relations  of  landlord  and  tenant,  and  tenant  for  life  or  in  tail 
and  remainderman  or  reversioner.^  The  reason  of  this  stricter 
application  of  the  ancient  rule  of  law  may  be  found  in  a  variety 
of  circumstances.  In  addition  to  the  known  regard  of  the  law 
for  the  interests  of  the  heir,  it  may  be  stated  that  there  exist 
here  no  such  grounds  of  public  policy  for  making  an  exception 
to  the  old  rule  of  law  as  in  the  relations  above  mentioned. 
There  being  no  community  of  interest  respecting  fixtures  be- 
tween landlord  and  tenant,  the  tenant  would  rarely  erect  valu- 
able improvements  for  trade  purposes,  if  he  were  not  allowed  to 
remove  them  at  the  termination  of  his  estate.  In  the  ease  of 
tenant  for  life  or  in  tail,  as  we  have  seen  in  the  preceding 
chapter,  the  interest  of  the  tenant  being  usually  more  inti- 
mately connected  with  that  of  the  remainderman  or  reversioner, 
and  his  estate  being  more  lasting,  there  arises  a  stronger  pre- 
sumption that  annexations  are  intended  as  permanent  amelio- 
rations of  the  estate.  And  in  the  case  of  tenant  in  fee,  the 
question  is  merely  one  of  real  or  personal  assets;  and,  especially 
in  this  country  where  in  cases  of  intestacy  as  a  general  rule 
real  and  personal  property  ultimately  vest  in  the  same  per- 
sons, whether  the  property  after  the  death  of  the  owner  passes 
to  his  real  or  his  personal  representatives  is  a  considera- 
tion which  ordinarily  would  have  no  influence  whatever  upon 
*him  in  making  annexations  to  the  realty.  Moreover  [*210] 
in  the  case  of  a  tenant  in  fee  th(^rc  arises  from  the  nature  of  his 

1  See,  generally,  the  authorities  cited  in  this  chapter  and  the  chapters 
treating  the  subjects  above  m('ntif)nc<l ;  also,  Kinscll  v.  Billiiips,  3;!  Iowa, 
154  (1872);  2  Kent  Com.,  345.  [Sec  Xort.-.n  v.  Dashwood  [IKOf)),  li  Ch., 
497,  500.     For  the  rule  as  to  vegetable  products,  see,  post,  •246.] 

295 


*o 


211  TUE  LAW  OF  FIXTURES.  [CHAP.  VI. 

interest  a  presumption,  very  much  stronger  than  in  any  of  the 
other  rehitions  above  referred  to,  that  sneh  annexations  were 
intended  as  permanent  accessions  to  the  realty ;  and  where  such 
intention  exists,  it  has,  as  has  been  already  stated  in  a  pre- 
ceding chapter,  a  controlling  influence  in  determining  the 
question  whether  the  article  has  become  a  part  of  the  realty.^ 

With  regard  to  the  requisite  degree  of  annexation  by  the 
owner  of  the  soil  to  convert  a  chattel  into  a  fixture  possessing 
the  attributes  of  realty,  and  whether  actual  annexation  is  in 
all  cases  necessary,  what  has  been  said  in  a  previous  chapter 
with  regard  to  the  subject  of  annexation  real  and  constructive, 
is  believed  to  be  equally  applicable  in  this.^ 

In  determining  questions  arising  between  the  heir  and  the 
personal  representatives  of  the  tenant  in  fee,  as  to  whether 
articles  annexed  to  the  realty  by  the  owner  of  the  soil  go  with 
the  land  to  the  heir  or  to  the  executor  as  a  part  of  the  personal 
estate,  though  there  are  some  authorities  to  the  contrary,  the 
rule  is  believed  to  be  that  in  all  cases,  without  exception,  where 
an  article  of  a  chattel  nature  has  been  so  annexed  to  the  realty 
by  the  owner  both  of  such  chattel  and  the  realty  as  to  have 
lost  its  chattel  nature  and  to  have  become  to  any  extent  pos- 
sessed of  the  attributes  of  the  realty,  it  passes  as  res  acces- 
[*211]  *soria  with  the  realty,  which  is  the  res  principalis,  to  the 

1  See  (ante)  pp.  *22,  *39,  et  seq. 

2  See  (ante)  pp.  *8,  *33,  et  seq.;  also  post,  chapter  9.  [Dowall  v.  Miln 
(1874),  1  Sess.  Cas.,  4th  Ser.,  1180.] 

The  degree  of  annexation  may  be  so  slight  as,  taken  in  connection  with 
the  purpose  for  which  it  was  made,  to  show  there  was  no  intention  to  make 
the  article  annexed  an  accession  to  the  realty,  even  though  such  annexation 
is  made  by  the  owner  of  the  freehold;  and  in  such  case  the  article  will 
remain  a  chattel.  Thus  a  heater  placed  in  a  vat  in  a  tannery,  the  vat 
being  detached  from  the  building  except  that  a  small  piece  of  board  was 
tacked  with  nails  to  the  vat  and  the  side  of  the  building,  such  fastening 
being  unnecessary  and  of  no  use  except  to  keep  the  side  standing  while 
the  vat  was  put  together,  is  not,  it  seems,  so  annexed  to  the  freehold  as 
to  make  it  a  fixture,  even  if  annexed  by  the  owner  of  the  freehold.  Eay- 
mond  V.  White,  7  Cow.,  319  (1827). 

In  Crenshaw  v.  Crenshaw,  2  Hen.  &  Mun.,  22  (1808),  it  was  held,  that 
a  common  still  not  fixed  to  the  freehold,  in  a  house  which  would  not  be 
injured  by  its  removal,  was  personalty,  and  went  to  the  executor  and  not 
to  the  heir. 

296 


CHAP.   VI.]  HEIR   AND   EXECUTOR.  *211 

heir.3  The  so-called  exceptions  of  fixtures  which  are  held  to 
pass  to  the  executor,  are  believed  not  to  be  fixtures  in  any  true 
sense  of  the  word^  but  mere  chattels  which  pass  to  the  executor 
by  virtue  of  their  nature  as  such,  and  not  as  being  exceptions  to 
the  general  rule  in  relation  to  articles  which  are  parcel  of  the 
realty.'*  It  seems  clear  that  in  determining  the  question  above 
stated,  it  is  immaterial  that  the  articles  fixed  are  of  such  a 
nature  as,  if  fixed  by  a  tenant,  would  be  removable  by  him 
during  his  term.^  Nor  is  it  necessary  in  order  to  make  annex- 
ations by  the  owner  of  real  estate  a  parcel  of  the  realty,  that 
he  be  owner  of  the  realty  by  an  indefeasible  title.^     It  is  be- 

3  Where,  however,  the  res  principalis  passes  to  the  executor,  as  per- 
sonalty, the  res  accessoria  passes  with  it,  as  in  the  case  of  the  tenant 's 
interest  in  a  leasehold  house  which  passes  with  the  fixtures  to  the  executor. 
See  Brown  Fixt.,  §§  26,  208;  Off.  Ex.   (14th  ed.),  153. 

[In  Scotland  a  lease  descends  to  the  heir,  and  the  question  arose  whether 
mining  machinery  removable  as  between  the  lessor  and  lessee,  passed  to 
the  heir  or  to  the  executor  of  the  lessee.  Held,  that  fixtures  passed  to  the 
heir.  Bain  v.  Brand  (1876),  1  App.  Cas.,  762,  reversing  (1874)  2  Sess. 
Cas.,  4th  Ser.,  258,  267,  and  followed  in  (1878)  5  Sess.  Cas.,  4th  Ser., 
607.] 

The  water-wheel  and  gearing  of  a  mill  attached  thereto  and  necessary 
to  its  operation,  the  wheel  movable  and  being  on  gudgeons,  and  having  a 
head-stock  not  fixed,  the  ends  of  the  shafts  of  the  wheel  resting  on  perma- 
nent fixtures  in  the  building,  and  the  wheel  being  incapable  of  being  taken 
out  without  removing  a  part  of  the  building  and  being  separated  into 
pieces,  are  fixtures  and  real  estate  such  as  would  have  passed  to  the  heir 
by  descent  and  to  which  the  right  of  dower  attaches.  Powell  v,  Munson 
Man'f'g  Co.,  3  Mason  C.  C,  459   (1824). 

[A  pier  erected  for  the  use  of  a  wharf  attached  to  the  fee  of  a  street 
is  real  property  in  which  the  widow  is  entitled  to  dower.  Bedlow  v.  Still- 
well,  158  N.  Y.,  292  (1899),  aff'g  98  Supr.  Ct.  (91  Ilun),  384,  385 
(1895).] 

[Compensation  allowed  for  a  house  and  fences  placed  upon  the  land  of 
another  by  one  since  deceased,  belongs  to  the  heirs  and  not  to  the  adminis- 
trator.    Worth  V.  Worth,  84  111.,  442,  445    (1877).] 

♦  There  are  some  cases  (referred  to  post)  where  articles  which  might 
properly  be  considered  to  be  fixtures  have  been  held  to  pass  to  the  executor 
instead  of  to  the  heir.  These  cases,  however,  are  believed  to  be  incorrect 
statements  of  the  law. 

5  See  Ex  parte  Rcynal,  2  M.  D.  &  DeG.,  443,  461    (1841). 

6  Christian  v.  Dripps,  28  Pcnn.  St.,  271  (1857).  See,  also,  Kinsell  v. 
Billings,  35  Iowa,  154  (1872),  where  the  structure  (a  mill)  was  built  by 
one  claiming  to  be  the  owner  of  the  land. 

297 


*212  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

lieved  also  that  where  a  tenant  in  tail  leaves  issue  in  tail,  his 
executor  will  not  be  entitled  to  greater  privileges  as  to  fixtures 
against  the  heir  in  tail,  than  the  executor  of  a  tenant  in  fee 
simple  against  the  heir  in  fee.'^ 

Although,  as  above  stated,  fixtures  as  distinguished  from 
mere  chattels,  as  between  executor  and  heir  descend  with  the 
land  to  the  heir,  and  do  not  pass  to  the  executor  as  personalty, 
this  view,  as  will  be  shown  hereafter,  has  not  always  been 
adopted  by  the  courts.  The  early  authorities,  however,  seem 
[*212]  *to  lay  down  the  rule  without  exception;  and  this  with- 
out reference  to  whether  the  erections  were  made  for  the  pur- 
pose of  trade  or  otherwise. 

In  the  Year  Book,  20  11.  7,  13  b,  pi.  24  (1504).  the  action 
was  trespass  brought  by  the  heir  against  the  executor  for  the 
removal  of  a  furnace  which  was  fixed  and  annexed  to  the 
frank-tenement  with  mortar,  and  the  court  held  the  removal 
to  be  tortious:  "For  those  things  which  can  neither  be  for- 
feited by  outlawry  in  personal  actions,  nor  attached  in  assize, 
nor  distrained  by  the  lord  for  the  rent,  such  things  the  exec- 
utors shall  not  have;  but  a  furnace,  or  a  table  fixed  in  the 
earth  with  posts,  or  a  paling,  or  a  covering  of  a  bed,  or  a  wain- 
scot or  border  fixed  to -the  frank-tenement,  or  doors  and  win- 
dows and  other  like  things  which  are  annexed  to  the  frank-tene- 
ment and  are  made  pur  un  profit  del'  enlieritance,  can  neither 
be  forfeited  by  outlawry  nor  taken  in  distress,  therefore  ex 
consequente  it  follows  that  the  executors  shall  not  have  such 
things,  etc. ' '  ^ 

In  21  H.  7,  26  b  (1506),  which  is  probably  another  report 
of  the  same  case,^  a  man  seized  of  a  house  in  fee  simple,  made 
a  furnace  of  lead  in  the  middle  of  the  house,  which  was  not 
fixed  to  the  walls  of  the  house,  and  having  appointed  his  execu- 
tors, died.  The  heir  entered,  and  the  executors  took  the  furnace, 
whereupon  the  heir  brought  trespass;  and  it  was  held  by  the 
entire  court  that  the  action  lay,  because  the  furnace  was  fixed 
to  the  frank-tenement;  "for  as  well  is  the  land  the  frank-tene- 

7  See  the  preceding  chapter,  p.  *184. 

8  See,  also,  the  case  next  cited. 

9  See  Powell  v.  Monson  Man'g  Co.,  3  Mason  C.  C,  465  (1824),  per 
Story,  J. 

298 


CHAP,  VI.]  HEIR   AND   EXECUTOR.  *213 

ment  as  the  house;  and  therefore  it  shall  go  with  the  frank- 
tenement."  ^°  Pollard,  J.,  in  this  ease  observed  that  "such 
things  as  are  affixed  and  annexed  to  the  frank-tenement,  will 
descend  to  the  heir  with  the  inheritance ;  and  moreover  they  will 
pass  by  feoffment  with  the  frank-tenement;  as  where  vats  are 
fixed  in  the  earth,  either  in  a  brew-house  or  in  a  dye-house,  they 
are  appurtenances  to  the  frank-tenement  and  are  altered  from 
the  *nature  of  a  chattel. "^^  In  the  same  case  Kings-  [*213] 
mil,  J.,  observed  that  "after  it  is  fixed  to  the  frank-tenement, 
it  is  incident  to,  if  it  is  not  parcel  of,  the  frank-tenement ;  and 
it  will  always  go  and  pass  with  the  frank-tenement."  *  *  * 
"And  where  a  person  fixes  vats  in  a  brew-house  or  a  dj-e-house, 
and  dies,  the  heir  shall  have  them  [the  vats]  :  for  when  they  are 
fixed,  they  are  for  the  continual  profit  of  the  house ;  and  on  this 
account  it  is  more  reasonable  that  the  heir  should  have  them, 
who  has  the  frank-tenement  to  which  they  are  annexed,  than 
that  the  executors  should  have  them,  who  have  nothing  to  do 
with  the  frank-tenement."  Rede,  C.  J.,  also  said:  "The  execu- 
tors shall  have  all  kinds  of  chattels  which  were  their  testator's; 
but  this  is  where  they  are  properly  in  the  nature  of  chattels; 
therefore,  here  when  this  furnace  is  annexed  and  fixed  to  the 
earth,  it  is,  as  it  were,  a  thing  of  a  higher  nature,  and  in  a  man- 
ner is  made  incident  to  this.  As  in  the  case  which  has  been  put 
of  tables  dormant,  the  heir  shall  have  them  after  the  death  of 
the  ancestor,  and  not  the  executors;  and  for  the  following  rea- 
son, that  when  they  are  joined  to  the  inheritance,  it  is  agreeable 
to  reason  that  they  should  pass  with  the  inheritance  until  they 
are  severed  by  him  who  has  authority  to  sever  them,  and  this 
is  he  in  whom  the  inheritance  is.  "^^     The  early  text-books  and 

10  See,  also,  11  Vin.  Abr.,  167;  Bro.  Abr.  Chattels,  pi.  7;  id.  Executors, 
pi.  95;  if].  Trespass,  pi.  212;  Bac.  Abr.  Executors,  H.  3. 

1^  See,  also,  11  Vin.  Abr.,  167;  Bro.  Abr.  Executors,  pi.  95;  id.  Trespass, 
212;  Powell  v.  Monson  Manf'g  Co.,  3  Mason  C.  C,  465  (1824),  per 
Story,  J. 

12  See,  also,  Keilw.,  88;  8  H.  7,  12;  Day  v.  Austin,  Owen,  71  (1595); 
Cooke's  Case,  Moore,  177  (1582);  4  Co.,  63b,  64;  Cro.  Jac,  129;  Swinb. 
pt.  6,  sec.  7;  Godolph.  Orp.  Lep.,  pt.  2,  ch.  14;  Shep.  Touch.,  469,  470; 
OS.  Ex.,  149,  et  see].;  Com.  Dig.  Biens,  B. ;  Bro.  Abr.  Chattels,  pi.  7;  id. 
Executors,  pi.  95;  4  Bums'  Eccl.  Law  (9  Lond.  ed.),  410;  Bac.  Abr. 
Executors,  H.  3;  11  Vin.  Abr.,  167;  Fost.  C.  L.,  109.  [See  Carr  v.  Georgia 
R.  R.,  74  Ga.,  73,  82   (1884).] 

299 


•214  THE  LAW  OF  FIXTURES.  [cHAP.  VI. 

digests  also  state  the  rule  with  equal  strictness,  and  quite  gen- 
erally state  that  rule  to  be  that  glass^^  annexed  to  the  windows 
of  a  house,  wainscot  however  affixed,  tables  dormant,  coppers, 
leads,  bayes,  mangers,  doors,  pales,  walls,  staulks,  cupboards, 
[*214:]  *presses,  lockers,  etc.,  affixed  to  the  freehold,  furnaces 
of  lead  and  brass,  vats  in  a  brew  and  dye-house,  whether  fas- 
tened to  the  walls,  or  not  fastened  to  a  wall,  but  standing  in  or 
fastened  to  the  ground  in  the  middle  of  the  house,  mill-stones, 
anvils,  doors,  keys,  window-shutters,  etc.,  pass  to  the  heir  as 
parcel  of  the  freehold,  and  not  to  the  executor.^^  The  rule  as 
thus  laid  down  and  supported  by  numerous  early  authorities, 
has  also,  as  we  shall  see  hereafter,  been  followed  and  confirmed 
by  the  weight  of  modern  authority. 

As  has  been  above  stated  there  are,  however,  cases  where  a 
more  liberal  rule  in  favor  of  the  executor  and  the  personal 
estate  seems  to  have  been  adopted  by  the  courts ;  and  this  with 
reference,  not  only  to  fixtures  put  up  for  the  purposes  of  trade, 
but  also  to  fixtures  erected  for  other  purposes. 

In  Squier  v,  Mayer,i^  it  was  held  that  a  furnace  though  fixed 
to  the  freehold  and  purchased  with  the  house,  and  also  hang- 
ings nailed  to  the  walls,  should  go  to  the  executor  and  not  to 
the  heir,  contrary  (as  is  therein  stated)  to  Herlakenden's  Case,^^ 
which  was  denied  to  be  law  as  to  the  premises. 

13  In  21  H.  7,  26  b,  above  referred  to,  it  was  said,  per  Pollard,  J.,  quod 
noil  fuit  negatum:  "The  contrary  of  glass,  for  the  executor  shall  have 
this ;  for  the  house  is  perfect  Tvithout  the  glass. ' '  But  this  is  clearly  not 
the  law.  See  4  Co.,  63  b,  64;  Co.  Lit.,  53  a;  Off.  Ex.,  151;  Swinb.,  pt.  6, 
see.  7;  Shep.  Touch.,  469,  470;  4  Burns'  Eccl.  Law  (9  Lond.  ed.),  410. 
See,  also,  Cooke's  Case,  Moore,  177   (1582). 

"See  note  (12),  p.  *213. 

isFreem.  Ch.,  249   (1701);  s.  c,  2  Eq.  Ca.  Abr.,  430. 

18  4  Co.,  64  (1589).  The  ease  referred  to  above  as  Herlakenden's  Case, 
seems  to  have  been  Warner  v.  Fleetwood  therein  cited.  The  case  of  Squier 
V.  Mayer  is  thus  commented  upon  by  Mr.  Brown,  in  his  work  on  Fixtures, 
§  209:  "Of  this  case  two  possible  explanations  may  be  given,  either  (1) 
that  the  purchase  of  the  house  and  the  purchase  of  the  furnace,  although 
the  two  purchases  were  made  at  one  and  the  same  time,  were  essentially 
distinct  transactions,  and  had  been  treated  as  such  by  the  deceased,  who 
had  therefore  by  his  treatment  of  them,  both  at  the  time  of  the  purchase 
and  afterwards  up  to  the  date  of  his  death,  prevented  that  coalescence  of 
the  fixture  with  the  freehold  which  would  otherwise  have  naturally  fol- 
lowed; or  (2)  that  the  fixtures  in  question  in  the  case  were  of  a  peculiarly 

300 


CHAP.  VI.]  HEIR   AND   EXECUTOR.  *215 

*In  Harvey  v,  Harvey/'  it  was  held  that  hangings,  [*215] 
tapestry,  and  iron  backs  to  chimnies  belong  to  the  executor  and 
not  to  the  heir;  but  it  does  not  appear  from  the  report  how  the 
articles  in  question  were  put  up ;  nor  whether  they  were  in  fact 
at  all  annexed  to  the  realty ;  nor  finally,  whether  the  building  to 
which  they  may  have  been  annexed  was  a  leasehold  or  held  in 
fee  simple. 

The  case  of  the  cider-mill  referred  to  by  the  court  and  coun- 
sel in  Lawton  v.  Lawton,!^  as  having  been  decided  by  Lord  Chief 
Baron  Comyns,  may  also  be  referred  to  in  this  connection.  This 
cider-mill  was  said  to  have  been  let  very  deep  into  the  ground, 
and  yet  upon  an  action  of  trover  brought  by  the  executor 
against  the  heir,  it  Avas  held  to  be  personal  estate  and  to  go 
to  the  executor.  This  case  was  cited  approvingly  by  Lord 
Hardwicke  in  Lawton  v.  La'\\i:on,^9  who  also  remarked  that 
while  it  was  true  that  the  old  rules  of  law  had  been  relaxed 
chiefly  between  landlord  and  tenant,  and  not  so  frequently  be- 
tween an  ancestor  and  heir  at  law,  or  tenant  for  life  and  re- 
mainderman, yet  even  in  these  cases  it  did  admit  the  considera- 
tion of  public  convenience  for  determining  the  question,  and 
that  even  between  ancestor  and  heir  it  would  be  very  hard  that 
such  things  should  go  in  every  instance  to  the  heir.  With  refer- 
ence however  to  this  cider-mill  case.  Lord  Mansfield  observed  in 
Lawton  v.  Salmon2*J  that  he  could  not  find  any  case  except  that 

expensive  and  unnecessary  sort,  and  had  exhausted  the  personal  estate  in 
an  excessive  degree,  so  that  there  was  a  strong  equity  of  creditors  or  of 
other  persons  calling  for  a  mitigation  of  the  rule.  The  case,  unless  ex- 
plainable on  one  of  these  two  suppositions,  or  on  some  other  supposition, 
can  not  be  considered  as  an  authority  binding  in  cases  between  heirs  and 
executors;  as  neither  can  the  case  of  Harvey  v.  Harvey,"  2  Str.,  1141. 
The  case  of  Squier  v.  Mayer,  as  roported,  contains  no  further  statement  of 
the  facts  than  is  herein  stated,  and  it  seems  preferable  to  regard  it  (so  far 
at  least  as  concerns  the  furnace)  simply  as  overruled.  See  the  hangings 
referred  to,  post. 

"2  Str.,  1141  (1740).  See,  also,  4  Burns'  Eccl.  Law  (9th  Lond.  ed.), 
411;  Beck  v.  Rebow,  1  P.  Wms.,  94  (170G). 

18  3  Atk,,  13    (1743). 

10  Also  in  Dudley  v.  Warde,  1  Anihl.,  Ill  (1751).  Son,  also,  Elwes  v. 
Maw,  3  East,  38  (1802);  Dean  v.  Allallcy,  3  Esp.,  11  (1799);  Bull.  N.  P., 
34;  Trappcs  v.  TIartcr,  2  Cr.  &  M.,  153,  181    (1833). 

20  1  H.  Bl.,  259,  note  (1782);  s.  c,  3  Atk.,  10  note. 

301 


♦216  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

about  the  cider-mill  (which  was  not  printed  at  large)  where 
there  had  been  any  relaxation  between  the  heir  and  executor; 
and  that  that  case  most  probably  turned  upon  a  custom.  And 
the  case  itself  is  now  doubtless  overruled. ^^  There  are  also  some 
other  authorities  tending  to  support  the  more  liberal  doctrine 
[*121G]  above  *stated,  that  will  be  found  referred  to  in  the  note 
below  and  in  a  subsequent  chapter  where  the  relation  of  vendor 
and  vendee,  etc.,  is  considered.^^ 

On  the  other  hand,  besides  the  early  cases  already  referred 
to,  there  are  several  modern  cases  upon  the  subject  which  seem 
to  settle  the  question  in  accordance  with  the  views  already 
stated.  The  subject  will  perhaps  be  relieved  of  some  of  its 
difficulty  by  bearing  in  mind  the  tests  of  a  fixture  as  stated  in 
the  first  chapter  of  this  work.  The  early  cases  and  many  more 
modern  seem  to  make  annexation  the  principal  characteristic 
and  test,  though  the  influence  upon  the  question  of  the  pur- 
pose to  make  the  articles  a  permanent  accession  to  the  realty 
seems  hinted  at  in  some  of  them  by  the  use  of  the  words  ''pur 
un  profit  del'  enheritance,"  and  other  similar  expressions.^^ 

A  number  of  very  respectable  modern  authorities  lay  down 
the  rule  that,  as  between  executor  and  heir,  the  decisions  seem 
to  rest  mainly  on  the  ground  that  where  the  fixed  instru- 
ment, engine,  or  utensil,  etc.,  is  an  accessory  to  a  matter  of  a 
personal  nature  (as  a  trade),  it  should  be  itself  considered  as 
personalty,  but  where  an  accessory  to  the  enjoyment  and  use 
of  the  freehold,  then  it  should  be  regarded  as  a  fixture  and  go 
to  the  heir.2^     This  distinction  was  suggested  by  Lord  Ellen- 

21  See  Fisher  v.  Dixon,  12  CI.  &  Fin.,  312,  325,  329,  331  (1845)  ;  s.  c, 
9  Jur.,  883;  Wadleigh  v.  Janvrin,  41  N.  H.,  503,  515  (1860),  See,  also, 
cases  referred  to  in  the  following  pages. 

22  See  Ferard  Fixt.,  160,  188;  Grady  Fixt.,  17,  et  seq.,  30. 

23  See  the  cases  from  the  Year  Books  referred  to  at  the  beginning  of 
this  chapter. 

24  See  Lawton  v.  Lawton,  3  Atk.,  13  (1743),  and  Dudley  v.  Warde,  1 
Anibl.,  113  (1751),  per  Lord  Hardwicke;  Elwes  v.  Maw,  3  East,  38  (1802), 
per  Lord  Ellenborough;  McKenna  v.  Hammond,  3  Hill  (S.  C),  331  (1837)  ; 
Fairis  v.  Walker,  1  Bail.,  540  (1830);  Nimmons  v.  Moye  (1829),  not  re- 
ported, but  cited  in  the  two  preceding  cases;  Heermance  v.  Vernoy,  6 
John.,  5  (1810)  ;  the  ease  of  the  Olympic  Theater,  2  Browne  (Pa.),  275 
(1813);  Tuttle  v.  Eobinson,  33  N.  H.,  104,  120  (1856),  per  Fowler,  J. 
See,  also,  Teaff  v.  Hewitt,  1  Ohio  St.,  511,  535  (1853) ;  Trappes  v.  Harter, 

302 


CHAP.  VI.]  HEIR  AND  EXECUTOR.  *217 

borough  in  Elwes  v.  Maw,  in  commenting  upon  the  eases  of 
Lawton  v.  Lawton,  Dudley  v.  Warde,  Lawton  v.  Sahnon,  and 
*the  eider-mill  case;  and  the  latter  branch  of  the  propo-  [*217] 
sition  is  unquestionably  true.  This  latter  principle  Avas  made 
the  ground  of  decision  in  the  case  of  Lawton  v.  Salmon,^^ 
which  was  an  action  of  trover  by  the  executor  against  the  tenant 
of  the  heir  of  the  testator,  to  recover  certain  vessels  called  salt- 
pans, used  in  salt-works.  These  salt-pans  were  placed  in  the 
works  by  the  testator  some  years  before  his  death,  and  were 
made  of  hammered  iron  riveted  together;  they  were  brought 
in  pieces  and  might  be  removed  in  pieces;  they  were  not  joined 
to  the  walls,  but  were  fixed  with  mortar  to  a  brick  floor  with 
furnaces  under  them,  and  a  space  for  workmen  to  go  round 
them,  and  might  be  removed  without  injuring  the  buildings, 
though  the  salt-works  would  be  of  no  value  without  them,  while 
with  them  they  were  let  for  £8  per  week.  Lord  ]\Iansfield  in 
delivering  his  opinion  said:  "I  cannot  find  that  between  heir 
and  executor  there  has  been  any  relaxation  of  this  sort"   [re- 

2  Cr.  &  M.,  153,  181  (1833).  In  the  cases  of  Lawton  v.  Lawton  and  Dud- 
ley V.  Warde,  it  appears  that  certain  other  engines  erected  by  the  ancestors 
were  considered  not  to  be  personalty. 

This  subject  is  sometimes  regulated  by  statute.  See  2  R.  S.  (N.  Y.),  83, 
§  6;  post,  p.  *225;  Downing  v.  Marshall,  1  Abb.  Ct.  App.  Dec,  525 
(1863),  cited  post  in  chap.  9,  under  head  Devises  of  Fixtures. 

[Hay-scales,  in  an  excavation  made  and  stoned  for  the  purpose,  arc  part 
of  the  real  estate  descending  to  the  heirs.  Dudley  v.  Footc,  63  N.  H.,  57, 
58   (1884);  see,  also,  Arnold  v.  Crowder,  81   111.,  56,  59   (1876).] 

[Articles  so  affixed  to  the  buihling  as  not  to  be  separable  without  injury 
to  themselves  or  to  the  tenement  are  clearly  heritable.  iMachincs  only  at- 
tached for  the  purpose  of  their  more  convenient  use,  and  having  no  special 
adaptation  to  the  building,  are  not.  In  reganl  to  such  articles  the  part 
which  the  building  bears  is  that  of  shelter  and  sujiport,  and  is  truly  itself 
an  accessory  to  the  manufacture.  Articles  placed  in  a  tenement,  not  with 
a  view  of  increasing  its  value,  but  entirely  for  the  objects  of  a  separate 
trade,  never  lose  their  character  as  movable  property.  Ileld,  that  beam 
engines  and  boilers  built  in,  and  a  steam  |)unip  and  force  pump  bolted  to 
wooden  or  stone  blocks,  lathes,  etc.,  permanently  fixed,  circular  saws  fixed 
upon  benches,  the  feet  of  which  were  placed  a  little  into  the  ground,  but 
easily  removable,  and  a  hydraulic  packing  press  built  into  stone  founda- 
tions, go  to  the  eldest  son;  but  spinning  m;ichines,  etc.,  arc  to  be  divided 
among  the  young  children.  Dowall  v.  Miln  (1874),  1  Sess.  Cas.,  4th  Scr., 
1180.] 

26  1  H.  Bl.,  259,  note  (1782);  s.  c,  3  Atk.,  16,  note. 

303 


*218  THE  LAW  OF  FIXTURES.  [CIIAP.  VI. 

ferring  to  the  relaxation  between  landlord  and  tenant,  etc.], 
"except  in  the  ease  of  the  cider-mills,  which  is  not  printed  at 
large.-*^  The  present  case  is  very  strong.  The  salt  spring  is  a 
valuable  inheritance,  but  no  profit  arises  from  it  unless  there 
is  a  salt-work ;  which  consists  of  a  building,  etc.,  for  the  pur- 
pose of  containing  the  pans,  which  are  fixed  to  the  ground. 
The  inheritance  cannot  be  enjoyed  without  them.  They  are 
accessories  necessary  to  the  enjoyment  and  use  of  the  principal. 
The  owner  erected  them  for  the  benefit  of  the  inheritance;  he 
could  never  mean  to  give  them  to  the  executor,  and  put  him  to 
the  expense  of  taking  them  away,  without  any  advantage  to 
him,  w'ho  could  only  have  the  old  materials,  or  a  contribution 
from  the  heir  in  lieu  of  them.  But  the  heir  gains  £8  per  week 
by  them.  On  the  reason  of  the  thing  therefore  and  the  inten- 
tion of  the  testator,  they  must  go  to  the  heir. ' ' 

So,  in  McKenna  v.  Hammond,  already  cited,  when  the  in- 
testate died  a  cotton-gin  house  and  running-gear  were  on  his 
premises;  and  his  administrator  supposing  the  running-gear  to 
form  part  of  the  personal  estate,  sold  it  to  the  plaintiff.  The 
[*218]  *question  in  the  case  arose  between  the  plaintiff,  as  ven- 
dee of  the  administrator,  and  the  vendee  of  the  land  at  a  sale  by 
a  commissioner  under  the  order  of  the  court  of  equity.  The 
gearing  was  annexed  as  follows:  The  post  of  the  large  wheel 
w^as  let  into  a  block  morticed  in  the  joists  of  the  house,  which 
block  was  confined  by  pins  on  each  side  of  it,  but  not  driven 
through.  The  floor  was  laid  down  over  the  block,  loose,  not 
nailed.  The  court  upon  the  authority  of  the  case  of  Nimmons 
V.  Moye,  decided  in  1829,  but  not  reported,  held  that  this  gear- 
ing was  a  fixture  attached  to  the  freehold  and  that  the  admin- 
istrator had  no  right  to  sell  it.  In  delivering  the  opinion  of 
the  court,  Evans,  J.,  observed  that  the  principle  upon  which 
the  case  of  Nimmons  v.  Moye  w^as  decided,  was  that  whatsoever 
is  erected  upon  land  as  a  means  of  enjoying  it,  is  a  fixture ;  but 
whatever  is  intended  for  the  purpose  of  carrying  on  a  trade, 
which  has  no  necessary  connection  with  the  use  of  the  land,  is 
a  mere  chattel  and  belongs  to  the  administrator. 

So,  in  Tuttle  v.  Robinson,  already  cited,  a  Franklin  stove 

26  In  the  report  in  3  Atk.,  it  is  also  said  that  this  case  most  probably 
turned  upon  a  custom. 

304 


CHAP.  VI.]  HEIR  AND  EXECUTOR.  *219 

weighing  about  300  lbs.,  set  in  the  bar-room  of  the  house  of  the 
intestate  in  his  life  time,  on  brick-work,  without  legs  and  with 
a  very  short  funnel  bricked  round,  it  being  doubtful  whether  it 
could  be  removed  without  disturbing  the  brick-work,  Avas  (as 
being  accessory  to  the  realty),  held  as  between  the  heir  and 
administrator  to  be  a  fixture  and  to  go  to  the  heir.^  The  same 
principle  has  also  been  applied  in  other  cases  and  may  be  re- 
garded as  well  settled.-  With  regard,  however,  to  the  first 
*branch  of  the  proposition  there  is  great  doubt,  and  the  [*219] 
better  opinion  is  believed  to  be  that  as  between  executor  and 
heir  the  distinction  is  not  well  founded.  The  origin  of  the  no- 
tion seems  to  have  been  the  dictum  of  Lord  Hardwicke  in  Law- 
ton  V.  Lawton,  and  that  of  Lord  Ellenborough  in  Elwes  v.  Maw, 
in  explaining  that  and  the  other  cases  referred  to,  ante.  So  far 
as  regards  the  so-called  mixed  cases  there  seems  no  doubt  but 
that  the  doctrine  is  overruled;  and  the  principle  of  the  cases 
to  be  hereafter  referred  to  is  believed  to  extend  to  and  include 
other  erections  for  trade  purposes,  if  intended  as  permanent 
and  habitual  annexations,  which  it  seems  Avill  in  this  relation 
ordinarily  be  presumed.  It  will  be  observed  that  the  author- 
ities referred  to  (ante)  as  supporting  that  distinction,  are  either 
dicta,  or  else  refer  to  articles  accessory  to  the  realty,  or  are  so- 
called  mixed  cases;  and  so  far  no  ease  has  been  found  where 
the  point  above  stated  has  been  directly  raised  and  decided  in 

iSee,  also,  Goddard  v.  Chase,  7  Mass.,  432    (1811). 

It  seems,  however,  that  a  stove  similar  to  the  one  above  described,  weigh- 
ing about  150  lbs.,  standing  in  the  dining-room  on  legs,  and  which  had  a 
short  funnel  passing  into  the  chimney,  but  which  might  be  removed  with- 
out disturbing  the  brick-work,  is  personal  property  as  between  iulniiiiistrator 
and  heir.     Tuttlo  v.  Kubiusun   (xuiJia). 

2  See  Bainway  v.  Cobb,  99  Mass.,  457  (LS6S);  Clark  v.  Burnside,  15  111., 
62  (1853),  where  it  was  held,  that  rails  in  stacks  are  personal  property, 
but  that  rails  in  a  fence  are  parcel  of  the  realty  and  pass  therewith  to  the 
heirs;  and  that  if  a  guardian  severs  and  converts  thom  to  his  own  use,  his 
estate  is  answerable  <lircctly  to  the  heirs  for  their  value. 

It  is  held,  that  manure  taken  from  tho  barn-yard  of  a  homostond  and 
piled  upon  the  land,  though  not  broken  up,  nor  rotten,  nor  in  a  fit  state  for 
incorporation  with  the  soil,  is  a  part  of  the  realty  and  docs  not  go  to  the 
administrators  of  the  owner.  Fay  v.  Muzzey,  13  dray,  53  (1M50).  Sec, 
also,  Carver  v.  Pierce,  Sty.,  66,  73  (1647) ;  Aleyn,  32.  [But  sco  Gardner  v. 
Perry,  39  Can.  Law  J.,  670,  671  (Ont.,  1903).] 
20  305 


*220  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

accordance  with  said  distinction  in  a  case  between  executor 
and  heir  M-liere  the  articles  in  (luestion  were  erected  for  trade 
purposes  solely  as  distin<?uishod  from  mixed  cases.  The  ques- 
tion was  quite  extensively  considered  in  the  House  of  Lords 
in  the  case  of  Fisher  v.  Dixon. ^  In  this  case  the  owner  of 
land,  for  the  purpose  of  better  using  and  enjoying  it,  erected 
and  atTixed  thereto  certain  machinery,  consisting  of  engines, 
etc.,  to  be  used  in  working  a  coal  and  iron  mine  and  works. 
This  machinery  was  capable  of  being  removed,  but  its  removal 
would  have  been  attended  with  a  heavy  expense  and  with  more 
or  less  damage  thereto.  Some  parts  of  it,  as  the  engines  for 
pumping  the  mines,  were  necessary  in  working  the  mines,  and 
if  removed  very  serious  damage  would  have  arisen  to  the 
mines  unless  immediately  replaced.  Upon  this  state  of  facts 
it  was  held  that  such  machinery  would  go  to  the  heir  as  a  part 
of  the  realty;  and  that,  if  the  corpus  of  the  machinery  be- 
longed to  the  heir,  all  that  belonged  to  such  machinery,  although 
more  or  less  capable  of  being  used  in  a  detached  state  from  it, 
[*220]  *must  necessarily  follow  the  same  principle  and  be  con- 
sidered as  passing  with  the  realty  to  the  heir.  In  rendering  their 
opinions  the  cider-mill  case  was  criticised  and  treated  as  of  no 
authority  by  every  member  of  the  court  whose  opinion  is  re- 
ported."*    It  was  insisted  in  behalf  of  the  appellant  that  it  was 

S12  CI.  &  Fin.,  312   (1845)  ;  s.  c,  9  Jur.,  883. 

4  Lord  Brougham  said :  ' '  Great  reliance  was  of  course  placed  upon  the 
case  before  Lord  Hardwicke,  in  our  Court  of  Chancery  here,  and  a  similar 
case  which  occurred  more  recently  in  the  Court  of  Exchequer,"  [Trappes 
V.  Harter,  2  Cr.  &  M.,  150  (1833)  ;  s.  c,  3  Tyrwh.,  603].  "But  there  was 
an  attempt  made  to  distinguish  this  case  in  principle  from  that,  and  to 
show  that  there  was  another  inconsistent  decision  in  the  cider-mill  case. 
Now  it  is  a  remarkable  circumstance  that  of  that  case  we  have  only  a  very 
indistinct  and  unsatisfactory  report.  We  have  really  nothing  that  can  be 
called  a  record  of  that  case.  It  was  cited  in  the  case  before  Lord  Hard- 
wicke; and  I  must  also  say,  that  if  the  cider-mill  case  is  to  be  taken  as  it 
is  represented  to  us,  as  regards  the  substance  of  the  case,  and  in  its  result, 
my  mind  goes  not  at  all  with  that  decision.  It  is  contrary,  undeniably,  to 
the  general  principles  of  our  law  upon  the  subject;  and  if  the  same  ques- 
tions were  to  arise  to-morrow,  with  the  circumstances  which  are  represented 
to  have  attended  that  case,  it  would  not,  in  my  opinion,  lead  to  the  same 
result.  Therefore  I  lay  it  out  of  view.  We  have  a  most  imperfect  account 
of  the  circumstances,  and,  above  all,  of  the  most  material  circumstances, 
of  how  the  mill  was  affixed  to  the  soil.    For  if  a  cider-mill  be  fixed  to  the 

3oa 


CHAP.  VI.]  HEIR   AND   EXECUTOR.  *221 

♦necessary  for  the  encouragement  of  trade  that  the  erec-  [*221] 
tions  in  question  should  be  considered  as  not  belonging  to  the 
real,  but  to  the  personal  estate.  But  the  court  were  unanimously 
of  the  opinion  that  the  principle  uopn  which  a  departure  had 
been  made  from  the  old  rule  of  law  in  favor  of  trade,  had  no 
application  whatever  to  questions  arising  between  heir  and  exe- 
cutor in  a  case  like  this,  where  the  individual  who  erected  the 
machinery  was  the  owner  of  the  land  and  of  the  personal  prop- 
erty which  he  erected  and  employed  in  carrying  on  the  works. 

soil,  though  it  is  a  manufactory,  and  erected  for  the  purpose  of  a  manu- 
factory, if  it  is  really  solo  iiifirum,  it  is  perfectly  immaterial  whether  it  is 
for  the  purpose  of  a  manufactory,  or  a  granary,  or  a  barn,  or  anything 
else.  It  is  a  fixture  on  the  soil,  and  it  becomes  part  of  the  soil.  Can  any 
man  say  that  one  of  the  great  brew-houses  would  belong  to  the  executor 
because  it  is  erected  for  the  purpose  of  manufacture  and  wholly  uncon- 
nected with  the  land?  For  a  brew-house  is  as  much  unconnected  with  any 
crops  upon  the  land  upon  which  it  is  situated  as  a  cider-mill  can  be  said 
to  be;  it  is  for  tho  purpose  of  brewing  beer  out  of  malt  which  need  not 
have  been  raised  on  that  land,  but  may  have  been  grown  in  Russia  or  in 
Africa.  It  has  nothing  to  do  with  the  land,  as  may  be  seen  by  those  who 
will  take  the  trouble  of  looking  at  any  of  the  brew-houses  in  London, 
which  are  established  in  places  where  it  would  be  very  diflSeult  to  find  a 
blade  of  grass,  much  less  a  crop  of  barley  of  which  to  make  malt.  But 
although  it  is  a  manufactory,  nobody  says  it  belongs  to  the  executor,  nor 
constitutes  what  the  Scotch  generally  call  an  executry  fund;  it  would  go 
unquestionably  to  the  heir.  The  Scotch  law  appears  to  me  only  to  differ 
from  the  English  law  in  carrying  the  principles  of  our  law,  as  laid  down 
in  the  cases,  a  little  further  rather  than  falling  short  of  them."  Lord 
Campbell  also  said:  "The  only  case  the  other  way  which  has  been  re- 
ferred to  is  that  of  the  cider-mill,  where  the  essential  circumstance  is  left 
entirely  in  doubt,  whether,  in  fact,  the  mill  Avas  fixed  to  the  freehold  or 
not.  We  know  that  a  cider-mill  is  not  necessarily  aflixed  to  the  freehold, 
a  familiar  instance  of  which  is  given  in  the  Vicar  of  Wakefield,  where, 
when  a  match  was  proposed  between  one  of  the  Misses  Primrose  and  young 
Fanner  Flamstcad,  Moses  said:  'I  hope  that,  if  my  sister  marries  young 
Farmer  Flamstead,  he  will  lend  us  his  cidcr-inill.'  I  take  it  tliaf  the 
cider-mill  there  was  movable,  and  was  not  afiixcd  to  the  freehold,  but 
might  have  been  carried  from  the  farm  of  Farmer  Flamstead  (o  the 
vicarage  of  the  Primroses." 

Mr.  Wilbraham,  however,  in  his  citation  of  the  case  describes  this  mill 
as  "let  in  very  deep  into  tho  ground,"  and  as  being  "certainly  fixed  to 
the  freehold;"  and  the  above  explanation  seems  hardly  satisfactory.  See 
Forard  Fixt.,  177,  note;  also  Wadlcigh  v.  .Tanvrin,  41  N.  TL,  503,  515 
(1860). 

307 


*2'22  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

lie  mip;lit  have  disposed  of  the  land  or  machinery,  or  have 
separated  them  again.  It  was,  therefore,  not  at  all  necessary 
in  order  to  encourage  him  to  erect  these  new  works  which  were 
supposed  to  be  benelicial  to  the  public,  that  any  rule  of  that 
kind  should  be  established,  because  he  was  master  of  his  own 
land.'  The  cases  of  heir  and  executor,  vendor  and  vendee  and 
mortgagor  and  mortgagee,  in  the  absence  of  evidence  of  spe- 
cific intention  contained  in  the  deed  affecting  the  question, 
which  would  of  course  prevail,  have  always  been  deemed  iden- 
tical in  respect  to  their  rights  in  a  chattel  claimed  to  be  a  part 
of  the  realty.-  And  according  to  the  weight  of  authority,  it 
seems  well  settled  that,  no  intention  to  the  contrary  appearing, 
[*222]  *trade  fixtures  pass  to  the  vendee  or  mortgagee  of  the 
realty  as  parcel  thereof,  though  as  between  landlord  and  tenant 
they  might  be  removed  by  the  tenant  during  his  term.^ 

With  reference  to  articles  affixed  to  the  freehold  by  the  own- 
er thereof  for  purposes  of  ornament  or  domestic  convenience, 
though  a  contrary  opinion  has  been  maintained  by  some  au- 
thorities,'* the  rule  already  laid  down^  is  believed  to  be  equally 
applicable;  and  the  so-called  exceptions  are  believed  to  be  those 
articles  of  mere  ornament  or  furniture  movable  in  their  na- 
ture, which  in  all  respects  are  mere  chattels  and  in  no  proper 
sense  of  the  term  fixtures;  e.  g.,  carpets,  which  are  temporarily 
tacked  to  the  floor  to  keep  them  in  place  and  with  no  intention 
of  making  them  an  accession  to  the  realty,  pictures,  curtains 
etc.,  which  are  clearly  mere   chattels.'^     The  reports  give  no 

1  See  Climie  v.  Wood,  L.  E.,  4  Exeh.,  328,  330  (1869) ;  s.  c ,  38  L.  J., 
Exch.,  223,  225;  20  L.  T.  (N.  S.),  1012,  1013;  Mather  v.  Eraser,  2  Kay  & 
J.,  536  (1856);  Walmsley  v.  Milne,  7  C.  B.  (N.  S.),  115,  133,  136  (1859); 
and  the  cases  therein  cited.  See,  also,  the  early  authorities  cited  at  the 
beginning  of  this  chapter  (ante,  p.  *213).  [See  Walter  Est.,  10  Luz.  Leg. 
Eeg.  Eep.,  221   (1899).] 

2  See  21  H.  7,  26  b  (1506),  cited  ante,  p.  *212;  Price  v.  Brayton,  19  Iowa, 
309  (1865)  ;  Murdock  v.  Gifford,  18  N.  Y.,  31  (1858).  See,  also,  the  eases 
cited  in  the  preceding  note  and  in  the  chapter  discussing  the  relations  of 
vendor  and  vendee,  etc.     [Adams  v.  Beadle,  47  Iowa,  439,  441   (1877).] 

3  See  note  next  preceding. 

*See  Ferard  Fixt.,  178,  note,  182,  et  seq.;  Squier  v.  Mayer,  and  Harvey 
v.  Harvey,  referred  to,  ante.     [See  Re  De  Falbe  [1901],  1  Ch.,  523,  535.] 

5  See  the  early  authorities  cited  at  the  beginning  of  this  chapter. 

6  See  Gibb.  Fixt.,  21;  Swinb.,  part  7,  sec.  10;  Beck  v.  Eebow,  1  P.  Wms., 

308 


CHAP.  VI.]  HEIR  AND  EXECUTOR.  *223 

description  of  the  hangings,  tapestries,  etc.,  mentioned  in  the 
cases  of  Sqiiier  v.  ]\Iayer,  and  Harvey  v,  Harvey,  which  possi- 
bly may  likewise  have  been  mere  articles  of  furniture  only 
temporarily  fastened  to  keep  them  in  place;"  but  if  they  were 
so  attached  as  to  show  a  design  to  make  them  a  part  of  the 
house,  as  in  the  case  of  the  tapestries,  etc.,  in  D'Eyncourt  v. 
Gregory,^  referred  to  in  the  preceding  chapter,  then  unquestion- 
ably they  would  go  to  the  heir.  Each  case  must  necessarily  to 
a  great  extent  be  determined  upon  its  own  facts  and  the  infer- 
ences as  to  intention  to  be  drawn  from  them,  in  accordance 
with  the  principles  stated  in  the  first  chapter  of  this  work. 

Thus,  in  Cave  v.  Cave,*^  it  was  held  that  although  pictures 
and  glasses,  generally  speaking,  are  part  of  the  personal  estate, 
yet  if  put  up  instead  of  wainscot,  or  where  otherwise  wainscot 
*  would  have  been,  they  shall  go  to  the  heir,  to  whom  the  [*223] 
house  ought  not  to  come  maimed  and  disfigured.  » 

In  the  late  case  of  Bainway  v.  Cobb,^*^  the  facts  were  as  fol- 
lows: A  stone  sink  weighing  about  200  or  250  lbs.  was  set  by 
the  owner  of  a  dwelling  in  the  corner  of  a  room  over  a  cistern, 
and  under  the  spout  of  a  wooden  pump  connectinc-  therewith. 
The  sink  rested  upon  a  wooden  frame  next  the  sides  of  the 
room  (there  being  an  unpainted  strip  on  the  walls  back  of  the 
sink  and  frame),  and  was  not  nailed  or  fastened  to  the  house, 
except  that  a  lead  pipe  ran  from  a  hole  at  one  end  under  the 
sink  through  the  side  of  the  house  into  a  drain.  The  pump 
not  working  well  was  soon  removed,  but  the  lead  pipe  remained 
till  it  wore  out  and  was  then  taken  away  and  a  stopple  used  in 
the  sink  and  the  waste  water  drawn  or  dipped  out.  The  sink 
remained  in  the  same  place  and  was  used  for  washing  dishes 
and  in  doing  other  necessary  and  appropriate  domestic  work 
for  some  twenty-five  or  thirty  years,  and  till  after  the  death  of 

94  (1706).  See,  also,  Birch  v.  Dawson,  cited  ante,  p.  *7.  [That  chande- 
liers will  go  to  the  heir,  see  Smith  v.  Commonwealtli,  77  Ky.,  31,  33 
(1878).] 

7  See  Swinb.,  part  7,  sec.  10,  where  han{;jings  and  carpets  are  mentioned 
as  included  in  the  term  "household  stuff." 

»Ante,  p.  *192. 

0  2  Vern.,  508  (1705);  s.  c,  1  Eq.  Ca.  Ab.,  275.  Sco,  however,  Beck  v. 
Eebow,  1  P.  Wms.,  94   (1706). 

10  99  Mass.,  457  (1868). 

309 


•oo 


224  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

the  owuer  of  the  house.  Upon  this  state  of  facts  it  was  held, 
that  the  removal  of  the  pump  and  the  decay  of  the  pipe,  no 
change  being  made  otherwise  in  its  position  or  use,  did  not 
amount  to  a  severance  of  the  sink  from  the  freehold  so  as  to 
convert  it  into  personal  property  again,  and  therefore,  that  it 
descended  to  the  heir  as  real  estate,  and  did  not  devolve  upon, 
the  administrator  and  next  of  kin  as  personal  property.  The 
ground  upon  which  the  case  was  decided  seems  to  have  been 
that,  as  shown  by  the  purpose  and  mode  of  placing  it  upon  the 
premises,  as  Avell  as  by  its  adaptation  for  daily  use  in  ordinary 
domestic  work,  if  not  by  its  necessity  to  the  completeness  of 
the  dwelling,  it  was  intended  by  the  owner  to  be  a  part  of  the 
realty. 

In  several  other  instances  the  courts  in  alluding  to  this  sub- 
ject have  expressed  opinions  that  there  were  no  exceptions  to 
the  general  rule  that  fixtures  pass  with  the  freehold  to  the 
heir,  and  that  certain  specified  domestic  fixtures,  though  re- 
movable as  between  landlord  and  tenant,  passed  to  the  heir  and 
not  to  the  executor  ;^i  and  where  the  articles  are  really  fixtures 
[*224]  *partaking  to  some  extent  of  the  attributes  of  the  realty, 
such  seems  to  be  in  accordance  with  the  weight  of  authority. 

The  rule  that  fixtures  descend  with  the  land  to  the  heir,  ap- 
plies also  to  those  articles  which,  though  not  in  fact  annexed 
and  fixed  to  the  realty,  are  yet  an  incident  of  and  constructively 
annexed  thereto,  such  as  mill-stones,  keys,  and  other  articles 
of  a  like  nature.^  ^ 

The  question  whether  an  article  which  is  attached  to  the 
realty  descends  therewith  to  the  heir,  or  passes  to  the  executor 
as  a  chattel,  may  also  be  influenced  by  custom.     Thus,  in  refer- 

11  See  Lawton  v.  Salmon,  per  Lord  Mansfield,  quoted  ante;  Winn  (or 
Wynne)  v.  Ingilby  (or  Ingleby),  5  B,  &  Aid.,  625  (1822);  s.  c,  1  D.  & 
E.,  247,  where  it  is  said  that  set  pots,  ovens,  and  ranges,  affixed  by  the 
owner  of  the  freehold,  go  to  the  heir  and  not  to  the  executor.  See,  also, 
Colegrave  v.  Bias  Santos,  2  B.  &  C,  76  (1823)  ;  Eex  v.  Inhabitants  of  St. 
Dunstan,  4  B.  &  C,  686   (1825),  per  Bailey,  J. 

[It  is  waste  for  an  administrator  to  remove  frame  cabins,  although 
ruinous,  as  they  are  a  part  of  the  realty;  but  he  can  not  be  charged  with 
their  value  in  his  accounts.  Eeynolds  v.  Canal  and  Banking  Co.  of  N.  O., 
30  Ark.,  520,  525    (1875).] 

12  See  the  authorities  cited  in  chapter  I.  (ante,  p.  *33).  See,  also, 
Fisher  v.  Dixon,  referred  to  (ante)  ;  1  Cru.  Dig.,  chap.  3,  tit.  1,  §  7. 

310 


CHAP.  \1.]  HEIR   AND   EXECUTOR.  *225 

ring  to  the  cider-mill  case  hereinbefore  cited,  Lord  ^Mansfield  in 
Lawton  v.  Salmon,  gave  it  as  his  opinion  that  the  decision  was 
probably  founded  upon  a  custom.  It  was  also  held  in  a  case 
tried  before  Eyre,  C.  B.,  at  the  Winchester  summer  assizes,  in 
the  year  1724,  that  according  to  the  custom  of  the  country,  a 
granary  built  on  pillars  in  Hampshire  was  a  chattel,  which 
went  to  the  executors,  and  might  be  recovered  in  trover.^  ^  In 
Lowi;her  v.  Cavendish,^  ^  also,  which  was  a  case  concerning  the 
construction  of  a  devise  of  lands  and  mines,  a  reference  was  or- 
dered to  inquire  whether  the  timber  and  other  materials  laid 
down  for  making  wagon-ways  more  commodious  for  carrying 
coal  or  other  minerals  from  coal  or  other  mines;  and  also  fire- 
engines  placed  for  the  better  working  of  such  mines,  were  deemed 
and  reputed  in  the  county  of  Cumberland,  and  other  counties 
in  the  north,  fixed  to  the  freehold,  and  passed  therewith  to  the 
heir  or  remainderman,  or  went  to  the  executor  or  administrator 
of  the  party  erecting  the  sarae.^^ 

*The  common  law  rule  as  to  the  right  to  fixtures  as  be-  [*225] 
tween  the  executor  and  heir  of  a  tenant  in  fee,  is  also  of  course 
subject  to  change  by  legislative  enactment.  This  has  been  at- 
tempted in  the  State  of  New  York,  where  it  has  been  enacted 
that  "things  annexed  to  the  freehold,  or  to  any  building,  for 
the  purpose  of  trade  or  manufacture,  and  not  fixed  into  the 
wall  of  a  house,  so  as  to  be  essential  to  its  support,"  shall 
be  deemed  assets  and  shall  go  to  the  executor  or  administrator 
to  be  applied  and  distributed  as  part  of  the  personal  estate 
of  their  testator  or  intestate;^®  and  that  "things  annexed  to 

13  11  Vin.  Abr.,  154,  pi.  74. 

See,  also,  as  to  efifect  of  custom  as  between  landlord  and  tenant,  grantor 
and  grantee,  etc.,  the  chapters  where  those  relations  are  respectively  con- 
sidered. 

[But  a  two-story  wooden  building  can  not  be  regarded  as  personal  prop- 
erty because  natives  in  former  times  frequently  removed  their  house  frame 
to  another   locality.     Kaliinu   v.   Aea,  6   Hawaii,   68,   69    (1872).] 

14  1   Eden,  99,  118    (17o8). 

15  See,  also,  Trappes  v.  Harter,  2  Cr.  &  M.,  153,  181  (1833),  the  decision 
of  which  seems  to  have  been  somewhat  influenced  by  custom. 

10  2  R.  S.,  p.  82,  §  6,  Hubdiv.  4.  "Tt  [the  statute]  cannot,  however,  alter 
the  law  as  to  the  relation  of  vendor  and  vendee,  whatever  may  be  its  effect 
as  between  heir  and  executor."  Hunt,  C,  in  Voorhees  v.  McOinnis,  48  N. 
Y.,  284  (1872). 

311 


*226  THE  LAW  OF  FIXTURES.  [CHAP.  VI. 

the  freehold,  or  to  any  biiildiiifr,  sliall  not  go  to  the  executor, 
but  shall  descend  with  the  freehold  to  the  heirs  or  devisees, 
except  such  fixtures  as  are  mentioned  in  the  fourth  subdivision 
of  the  last  section. "^^  By  section  8  it  was  provided  that  "the 
right  of  an  heir  to  any  property  not  enumerated  in  the  prece- 
ding sixth  section,  which  by  the  common  law  would  descend 
to  him,  shall  not  be  impaired  by  the  general  terms  of  that  sec- 
tion." In  the  construction  of  the  4th  subdivision  of  section 
6  above  quoted  it  was  held  in  House  v.  House,^^  that  the 
water-wheels,  mill-stones,  bolting-apparatus  and  running-gear 
of  a  grist  and  flouring-mill  and  other  fixtures  of  the  same 
character  were  parts  of  the  freehold  and  descend  to  the  heirs-at- 
law  as  real  property.  In  delivering  his  opinion,  Walworth, 
Ch.,  said:  "Previous  to  the  adoption  of  the  revised  statutes 
there  was  a  distinction  supposed  to  exist  in  relation  to  what 
was  to  be  considered  a  part  of  the  realty,  as  between  landlord 
and  tenant,  and  as  between  the  heir-at-law  and  the  personal 
representatives.  It  was  also  supposed  that  an  outgoing  tenant 
might  be  permitted  to  remove  fixtures  of  a  particular  descrip- 
tion placed  by  him  upon  the  premises  for  a  special  purpose, 
which  as  between  the  heirs-at-law  and  the  personal  representa- 
tives of  the  owner  of  the  freehold  would  have  descended  to  the 
[*226]  *heirs.  But  the  legislature,  whether  wisely  or  other- 
wise it  is  not  for  me  to  decide,  in  adopting  the  provision  here 
referred  to,  probably  intended  to  put  the  executor  or  adminis- 
trator upon  the  same  footing  with  a  tenant  as  to  the  right  to  fix- 
tures. Such  at  least  was  the  recommendation  of  the  revisers, 
as  appears  from  their  note  to  the  6th  section  in  which  this 
provision  is  found.     (3  R.  S.,  639,  2d.  ed.)^^ 

"It  was  impossible,  however,  to  define  in  a  short  sentence  of 
three  lines,  what  was  to  be  considered  a  part  of  the  freehold 
itself,  and  what  were  mere  fixtures  or  things  annexed  to  the 
freehold  for  the  purposes  of  trade  or  manufacture,  and  I  think, 
in  this  case,  it  may  be  .safely  assumed  that  it  could  not  have 
been  the  intention  of  the  legislature  to  authorize  the  personal 
representatives  of  the  decedent  who  owned  this  grist-mill  in 
fee  at  the  time  of  his  death,  to  strip  it  of  its  water-wheels, 

"  Id.,  p.  83,  §  7. 

18  10  Paige,  158  (1843) ;  s.  c,  2  N.  Y.  Leg.  Obs.,  206. 

19  See  Buckley  v.  Buckley,  11  Barb.,  43,  53  (1850). 

312 


CHAP.  VI.]  HEIR  AND  EXECUTOR.  *227 

mill-stones,  bolting  apparatus,  and  running-gear;  leaving  to 
the  heirs-at-law  the  mere  sides  or  walls  of  the  building,  with 
its  floors,  partitions  and  roof.  Such,  however,  as  I  understand 
it,  is  the  claim  made  by  the  defendants  in  this  case.  For  it  is 
not  stated  in  the  answer  that  there  were  any  other  fixtures  in 
this  grist-mill  and  flouring-mill,  except  machinery  and  other 
apparatus  of  that  character  and  description.  Fixtures  of  the 
character  here  claimed  are  not  onlv  convenient,  but  essential 
to  the  proper  enjoyment  of  the  inheritance;  and  are  therefore 
as  much  a  part  of  the  freehold  as  the  building  and  water- 
power,  which  with  them  constitute  the  mill.  The  claim  of 
the  defendants  to  the  fixtures  must  therefore  be  rejected." 

This  construction  of  the  statute  was  approved  and  followed 
in  Buckley  v.  Buekley,^^  Hand,  J.,  in  a  well-considered  opinion 
there  observing  that  it  was  difficult  to  see  how  any  other  con- 
struction could  be  given  without  doing  incalculable  mischief; 
and  that  language  should  be  very  explicit  and  imperative  be- 
fore it  receives  an  interpretation  so  disastrous  in  its  conse- 
quences. This  construction  was  also  approved  in  Murdock  v. 
Gifford,2i  though  not  necessary  to  the  decision  of  the  case;  and, 
♦although  Denio,  J.,  in  Ford  v.  Cobb,22  expressed  him-  [*227] 
self  as  not  being  entirely  satisfied  with  the  reasoning  of  the 
chancellor  in  House  v.  House,  it  may  doubtless  be  regarded  as 
the  settled  construction  of  the  statute;  and,  notwithstanding 
said  statute,  it  seems  still  necessary  in  that  State  to  resort  to 
the  principles  of  the  common  law  and  to  the  decisions  of  the 
courts,  in  order  to  ascertain  what  is  parcel  of  the  freehold  and 
passes  as  such  to  the  heir.23 

20  11  Barb.,  43,  62   (1850). 
2118  N.  Y.,  28,  32   (1858). 

22  20  N.  Y.,  344,  348   (1859). 

23  See,  also,  Coey's  Estate,  1  Tuck.,  125   (1865). 

See,  however,  Farrar  v.  Chauffetete,  5  Den.,  531  (1848)  ;  Ilovey  v. 
Smith,  1  Barb.,  372  (1847),  whore  it  was  held,  that  a  pump  and  pipe,  bal- 
ances and  scales,  and  a  beer-pump  were  prima  facie  personal  property, 
which,  as  it  was  said,  could  only  descend  to  the  heir  as  apainst  fho  admin- 
istrator in  consequence  of  being  annexed  to  the  frccliold  in  hucIi  a  manner 
and  under  such  circumstances  as  to  come  within  the  provisions  of  said 
statute.  In  this  case,  however,  it  did  not  appear  from  the  transcript 
whether  the  articles  in  question  worn  ;innexod  to  the  freehold  at  all,  or,  if 
80,  whether  for  purposes  of  manufaclnif  or  not. 

313 


[*228]  CHAPTER  VII. 

CHARTERS,  HEIR-LOOMS,  ETC. 

There  are  some  things,  in  themselves  chattels,  which  are  con- 
sidered as  so  annexed,  and  necessary  to  the  enjoyment  of  the 
inheritance,  as  to  be  deemed  in  law  an  incident  or  part  of  it, 
and  so  descend  with  it  to  the  heir.^  Such  are  charters,  heir-looms, 
etc.,  which  as  the  questions  concerning  them  usually  arise  be 
tween  heir  and  executor,  may  be  conveniently  considered  in 
this  place. 

I.     Chaeters. 

In  the  United  States,  the  registration  in  public  offices  of 
deeds  of  conveyance  being  universally  provided  for  by  statute, 
the  grantor  usually  retains  his  own  muniments  of  title;  and, 
the  grantee  being  ordinarily  permitted  to  give  in  evidence 
certified  copies  from  the  record  of  all  deeds  under  which  he 
claims  or  deduces  title,  to  which  he  was  not  himself  a  party, 
and  of  which  he  is,  therefore,  supposed  not  to  have  the  con- 
trol,2  the  subject  of  this  section  has  lost  much  of  the  importance 
that  it  would  otherwise  possess  and  still  possesses  svhere  there 
are  no  such  statutes.  This  and  the  kindred  subject  of  heir- 
looms, etc.,  being,  however,  usually  treated  of  in  professed 
works  upon  the  law  of  fixtures,  and  there  being  (with 
only  two  or  three  exceptions)  no  cases  to  be  found  in  the 
[*229]  *reports  of, this  country  upon  these  subjects,  it  is  thought 
not  inexpedient  to  present  them  here  in  the  words  of  the  Eng- 
lish author,  Mr.  Ferard,^  with  such  additional  matter  as  may 
be  found  in  the  books  published  since  the  publication  of  his 
work:     "Charters  or  deeds  relating  to  the  inheritance,  are  the 

1  See  1  Cru.  Dig.,  Chap.  3,  tit.  1,  §  5. 

2  See  1  Greenl.  Cru.  Dig.  (2d,  ed),  tit.  2,  ch.  1,  §  39,  note  1;  2  id.,  tit. 
32,  ch.  11,  §  19,  note  1.     [Gay  v.  Warren,  115  Ga.,  733,  734  (1902).] 

3  Ferard  Fixt.,  189,  et  seq. 

314 


CHAP.  Vn.]  CHARTERS.  *230 

evidential  muniments  of  the  estate.  They  are,  as  Lord  Coke 
expresses  it,  the  sinews  of  the  land.  On  this  account,  the 
law  provides  that  they  shall  always  follow  the  land  to  which 
they  relate,  and  shall  vest  in  the  heir,  and  pass  to  the  alienee, 
as  incident  to  the  estate,  et  ratione  tcrrce."  ^  So  land-war- 
rants authorizing  the  selection  and  location  of  certain  amounts 
of  land  out  of  the  unappropriated  lands  of  the  United  States 
are  regarded  as  real  estate  and  pass  to  the  heir-at-law  unless 
specifically  devised.^  But,  although  in  general  the  heir  is  en- 
titled to  the  possession  of  the  muniments  of  title  to  real 
estate,  yet,  as  against  a  stranger,  the  executor  or  administra- 
tor, where  there  are  statutes  making  land  assets  in  his  hands 
*for  the  payment  of  debts  on  a  deficiency  of  personal  [*230] 
estate,  is  entitled  to  the  possession  oi  such  muniments  of  title.'* 
"If  the  land  is  forfeited  (as  for  treason  or  felony)  the  char- 

2  20  H.  7,  13  b  (1504);  21  H.  7,  27  (1506);  Co.  Lit.,  6  a;  11  Co.,  50, 
Liford's  Case  (1614);  Fitz.  Nat.  Brev.,  Detinue;  Com.  Dig.,  tit.  Charters, 
A;  Wilson  v.  Eybolt,  17  Ind.,  391  (1861).  See,  also,  1  Co.,  1;  Mo.,  488, 
pi.  687;  Lord  v.  Wardle,  3  Bing.  N.  C,  680  (1837);  Atkinson  v.  Baker, 
4  Term,  229  (1791).  [Masiamah  v.  Pachak,  4  Kyshe,  444,  445  (Straits 
Set.,  1889).] 

If  a  man  seised  of  lands  in  fee  simple  and  having  divers  evidences  and 
charters,  some  containing  warranty  and  some  not,  conveys  the  land  over 
to  another  without  warranty,  the  purchaser  shall  have  all  the  charters 
and  evidences  as  incidents  to  the  land  though  not  granted  to  him  by 
express  words.  Lord  Buckhurst's  Case,  1  Co.,  1  (1598);  s.  c.  Mo.,  488; 
2  Anders.,  118. 

But  where  a  man  conveys  with  a  warranty,  he  has  a  right  (unless  the 
deeds  are  expressly  granted)  to  retain  all  evidences  which  contain  war- 
ranty, or  serve  to  deraign  the  warranty  paramount,  or  which  are  material 
to  maintain  the  title  of  the  land;  but  the  feoffee  shall  have  such  evidences 
as  concern  the  possession  and  not  the  title.  Lord  Buckhurst's  Case 
(supra)  ;  Co.  Lit.,  6  a,  and  authorities  there  cited.  As  to  the  rule  in 
cases  where  a  man  sells  only  part  of  his  estate,  retaining  the  residue  him- 
self; and  where  lands  held  under  one  title  are  sold  to  two  or  more  per- 
sons in  separate  parcels,  see  Yea,  Rart.  v.  Field,  2  Term,  708  (1788); 
2  Sugd.  Vend.  (8th  Am.,  14th  Lond.  cd.),  433,  "452;  notes  to  Lord  Buck- 
hurst's Case,  1  Co.,  1,  et  seq.   (Lond.  ed.,  1826). 

3Atwood  V.  Beck,  21   Ala.,   590    (1852). 

*Cummings  v.  Tindall,  4  Stew.  &  Port.,  357  (1833);  Towle  v.  Lovet, 
6  Mass.,  394  (1810).  See,  also,  Hall  v.  White,  6  C.  &  P.,  1.36  (1827). 
[See  Mills  v.  Mead,  14  Supr.  Ct.   (7  Hun),  36,  38   (N.  Y.,  1876).] 

315 


*231  THE  LAW  OF  FIXTURES.  [CHAP.  VII. 

ters  or  evitleiices  which  bek)iig  to  the  hind  are  also  forfeited/' 
From  this,  their  strict  rehition  to  hind,  they  have  even  been 
accounted  for  some  purposes  not  to  be  chattels.^  And,  there- 
fore, it  is  said,  that  if  a  man  gives  and  grants  omnia  bona  et 
cataUa,  his  charters  concerning  his  land  shall  not  pass  by  these 
words."  They  are,  nevertheless,  so  far  in  the  nature  of  person- 
alty, that  an  action  of  trover,  detinue  or  trespass  de  bonis  aspor- 
tatis,  will  lie  for  them.^ 

"There  seems  formerly  to  have  been  some  difference  of  opin- 
ion with  regard  to  the  box  or  chest  in  which  charters  are 
preserved,  whether  this  also  should  pass  to  the  heir;  and  dis- 
tinctions have  even  been  taken  as  to  the  box  being  sealed  or 
locked,  or  otherwise.  In  Rolle's  Abridgment^  it  is  said,  that  if 
charters  are  in  a  chest,  the  executors  shall  have  the  chest,  and 
the  heir  the  charters;  and  if  the  chest  is  shut,  the  heir  shall 
have  the  chest  also;  but  if  it  is  not  shut,  the  executors  shall 
have  the  chest.  And  Swinburne  lays  it  down,io  i\^^i  i\-^q  Ijq^ 
ensealed,  though  the  same  be  not  affixed  to  the  freehold,  yet 
[*231]  *because  it  contains  those  things  which  belong  to  the 
heir,  it  also  belongs  to  the  heir,  and  not  to  the  executors.     But 

sStaun.   PI.   Cor.,   lib.   3,  ch.   26. 

sNoy's  Maxims,  p.  359  (9th  ed.).  Vide,  2  Roll.  Ab.,  108,  Ley  Gager, 
E,  F;   11  Vin.  Ab.,  178. 

7  "Perkins,  §  115;  Shep.  Touch.,  ch.  5,  p.  97;  Bro.  Ab.,  Chattels,  pi.  9; 
Eoll,  Ab.,  Grant,  X.  The  law  considers  them  as  partaking  so  much  of 
the  nature  of  land  that  larceny  at  common  law  cannot  be  committed  of 
them.  1  Hale,  P.  C,  510;  Leach's  C.  L.,  13.  But  see  1  Hawk.,  142,  and 
10  E.  4,  14,  where  a  different  reason  is  suggested  for  this  rule.  See  dot? 
the  Stat.,  7  &  8  Geo.  4,  ch.  29,  §  21,  et  seq.;  Hex  v.  Walker,  R.  &  M.,  155. 

"Charters  are  not  distrainable  as  chattels."     [See,  post,  p.  *360.] 
See,  however,  as  to  the  subject  of  larceny  {post,  p.  *449)  under  the  head 
of  crimes  relating  to  fixtures.     [By  statute  a  deed  to  land  is  the  subject 
of  larceny  in  Mississippi.     State  v.  Hughes,  80  Miss.,   609    (1902).] 

8  Cru.  Dig.,  Charters,  D ;  Action  upon  the  Case,  Trover,  C ;  Trespass,  A 
1;  vide,  3  B.  &  C,  225;  2  Br.  &  B.,  650;  Wilson  v.  Rybolt,  17  Ind.,  391 
(1861).  [See  Gay  v.  Warren,  115  Ga.,  733,  734  (1902);  King  v.  Gilson, 
32  111.,  348,  354   (1863);  and,  post,  p.  *417,  under  "Replevin."] 

9  Roll.  Ab.,  tit.  Ex'rs,  U;   Id.  tit..  Ley  Gager,  F. 

10  Treat,  on  Wills,  p.  759.  See,  also,  11  Vin.  Abr.,  166  and  authorities 
cited;  Plowd.,  323,  per  Wray,  J.;   Cowell's  Inst.,  62,  63. 

316 


CHAP,  VII.]  CHARTERS.  *231 

of  these  distinctions,  the  author  of  the  Law  of  Testaments  ob- 
serves, that  they  seem  not  to  be  well  taken.  For,  he  says,  if  it 
be  a  box  prepared  for  the  keeping  of  the  deeds,  the  heir  ought  to 
have  it,  whether  locked  or  open;  on  the  other  hand,  if  it  be  a 
box  designed  for  other  use,  as  for  the  keeping  of  linen,  it  can- 
not be  said  to  be  appurtenant  to  evidences,  although  some  be 
in  it,  for  so  be  many  other  things  also ;  or,  perhaps,  it  may  be 
a  chest  or  cabinet  of  great  value;  surely  this  shall  not  go  to  the 
heir,  when  perhaps  there  is  not  personal  estate  sufficient  to  pay 
the  testator's  debts.^^  In  like  manner  in  Wentworth's  Office 
of  Executors  it  is  said,  that  the  distinctions  taken  in  the  old 
cases  are  not  grounded  in  good  reason;  and  in  Comyn's  Digest 
it  is  laid  down,  in  general  terms,  that  the  chest  passes  to  the 
heir.i2 

"But  it  is  to  be  observed  that  those  deeds  and  writings  only 
are  here  intended  which  concern  land,  and  relate  to  the  free- 
hold and  inheritance.  For  such  as  relate  to  personalty,  as 
terms  of  years,  goods,  etc.,  will  belong  to  the  personal  repre- 
sentative, together  with  the  chattel  interest  to  which  they  refer.'  ^ 
So,  also,  if  the  writings  of  an  estate  are  pawned  or  pledged  for 
money  lent,  they  are  considered  as  chattels  in  the  hands  of  the 
creditor,  and  in  the  ease  of  his  decease,  they  will  go  to  his  per- 
sonal representative,  as  the  party  entitled  to  the  benefit  accru- 
ing from  the  land."''* 


'o 


"Law  Test.,  381;  vide,  4  Burn's  Ecc.  Law,  304. 

12  "Com.  Dig.  Biens,  B,  Charters,  A.  See  upon  this  subject  36  H.  6, 
p.  27;  Finch,  book  1,  p.  16;  Plowd.,  323;  Bro.  Abr.,  Chattels,  18;  Roll. 
Abr.,  Grant,  X,  pi.  5;  Ciodolph.  Orph.  Leg.,  part  2,  ch.  13;  Shop.  Touch., 
470;  Noy's  Max.,  239  (9th  ed.).  It  is  said  that  larceny  cannot  be  com- 
mitted of  the  box  in  which  charters  are  kept.  1  Hale,  510;  8  Inst., 
109."     See   (post)  Larceny,  p.  *417. 

"Off,  Ex.,  63;    3  Bac.  Abr.,  65. 

""Shcp.  Touch.,  469;  Tollers'  Executors,  231.  To  whom  the  pos- 
session of  deeds  appertains  in  different  cases,  see  upon  a  wawaiity  of 
title,  Lord  Buckhurst's  Case  (cited  ante);  Harg.  Co.  Lit.,  6  a,  N,  4;  in 
case  of  estates  for  life  or  in  tail.  Finch,  B.  1,  ch.  3,  p.  23;  Id.  B.  2,  ch. 
2,  p.  88 ;  2  P.  Wms.,  471 ;  in  case  of  a  purchase  not  completed,  3  B.  &  C, 
225;  and  for  other  cases  upon  this  subject,  see  Fitz.  N.  B.,  Detinue; 
1  Dick.,  650;  1  Eden,  8;  2  Term,  708;  2  Taunt.,  268;  6  Taunt.,  12;  4 
Bing.,   106." 

317 


•232  THE  LAW  OF  FIXTURES.  [CHAP.  VII. 

[*232]  *II.      IlEIR-LOOMS,    ETC. 

"Another  instance  in  which  property  may  pass  to  the  heir, 
although  it  is  in  itself  of  a  personal  nature,  is  in  the  case  of 
heir-looms.^ '^ 

"Heir-looms,  chiefs  or  principals,  are  those  things  which 
have  continually  gone  with  the  capital  messuage,i^  and  which 
upon  the  death  of  the  owner  descend  to  the  heir  along  with  and 
as  a  member  of  the  inheritance,  according  to  the  custom  of  some 
countries.^"  An  heir-loom,  in  its  strict  and  proper  sense,  is 
always  some  loose  personal  chattel,  such  as  would  ordinarily, 
and  but  for  the  particular  custom,  go  to  the  personal  represen- 
tatives of  the  deceased  proprietor.i^  Lord  Holt,  indeed,  is 
reported  to  have  said,  that  goods  in  gross  cannot  be  heir-looms, 
but  that  they  must  be  things  fixed  to  the  freehold,  as  old 
benches,  tables,  etc.,i^  and  it  is  observable  that  Spelman  thus 
defines  an  heir-loom:  'Omne  iitensile  rohustius  quod  ah 
cedibus  non  facile  revellitiir,  ideoque  ex  more  quorundam  loco- 
rum  ad  hceredem  transit  tanquam  memhrum  limreditatis.' ^^ 
But  the  instances  met  with  in  the  difiPerent  authorities  are 
always  things  of  a  mere  personal  chattel  kind  not  affixed  to  the 
house  or  land,  such  as  the  best  bed,  table,  pot,  pan,  cart,  or 
other  dead  chattel  movable.  These  are  the  only  kind  of 
heir-looms  mentioned  by  Lord  Coke -,21  and  he  illustrates  his 
[*233]  *remarks  upon  them  by  this  citation  from  the  old  en- 
tries:    'Consuetudo  hundredi  de  Strctford  in  Com'  Oxom'  est, 

15  No  instance  has  been  found  where  the  law  of  heir-looms  has  been 
recognized  as  a  part  of  the  jurisprudence  of  the  United  States.  Hence 
the  subject  is  presented  in  the  words  of  Mr.  Ferard  (p.  192,  et  seq.). 

10  14   Vin.   Abr.,    290. 

17  ' '  But  the  heir-looms  is  due  by  custom  and  not  by  the  common 
law."     Co.  Lit.,  18  b. 

18  Co.  Lit.,  18  b,  185  b;  1  Wms.  Exrs.  (6th  Lond.  ed.),  681.  The  cus- 
tom which  entitles  the  heir  must  be  strictly  proved.  1  Wms.  Exrs.  681- 
2  Bl.  Com.,  428. 

19  Lord  Petre  (or  Peter)  v.  Heneage,  12  Mod.,  520  (1701),  at  nisi  prius. 
But  see,  s.  c,  1  Ld.  Eaym.,  728:  "A  jewel  can  not  be  an  heir-loom,  but 
only  things  ponderous,  as  carts,  tables,"  etc.  See,  however,  Co.  Lit.,  18  b, 
that  the  ancient  jewels  of  the  crown  are  heir-looms. 

20  Spelman 's  Gloss,  voce  Heir-loome. 

21  Co.  Lit.,  18  b. 

318 


CHAP.  VII.]  HEIR-LOOMS,  ETC.  *234 

quod  hceredes  tenementorum  infra  hundredum  prcedictum  exis- 
tentium  post  mortem  antecessorum  suorum  habehunt,  etc., 
principaliiun,  Anglice,  an  heire-loome,  viz.;  de  quodam  genere 
catallorum,  ntensilium,  &c.,  optimum  plaustrum,  optimam 
carucam,  optimutn  ciphum,  Sc' 

"So  in  Les  Termes  de  la  Ley  an  lieir-loom  is  said  to  be 
'any  piece  of  household  stuff  (ascuji  parcel  des  iitensUs  d'un 
mease),  which  by  the  custom  of  some  countries,  having  belonged 
to  a  house  for  certain  descents,  goes  with  the  house  (after  the 
death  of  the  owner),  unto  the  heir,  and  not  to  the  executors.' 

' '  Sir  William  Blackstone,  in  the  Commentaries,  describes  heir- 
looms as  '  goods  and  chattels, '  22  and  always  treats  them  as  per- 
sonalty; though  (with  some  degree  of  inconsistency,  perhaps), 
he  says,  they  are  generally  such  things  as  cannot  be  taken  away 
without  damaging  or  dismembering  the  freehold.  And  in  one 
part  of  the  Commentaries 23  he  says  expressly,  'an  heir-loom,  or 
implement  of  furniture,  which  by  custom  descends  to  the  heir, 
together  with  an  house,  is  neither  land  nor  tenement,  but  a 
mere  movable. '2^ 

"And  indeed,  if  by  heir-looms  were  to  be  understood  only 
matters  affixed  to  the  freehold,  it  would  follow  that  there  are 
some  articles  attached  to  the  realty  which  require  the  aid  of 
custom  to  make  them  descendible  Mnth  the  inheritance,  and 
which,  but  for  such  custom,  would  legally  belong  to  the  execu- 
tor. Such  a  principle,  however,  is  altogether  inconsistent  with 
the  general  rule  respecting  annexations  to  the  freehold;  unless, 
indeed,  it  be  thought  that  in  these  cases,  the  chief  operation  of 
custom  upon  a  matt(>r  which  would,  of  itself,  necessarily  pass  to 
the  heir  as  parcel  of  the  freehold,  is  by  imparting  it  to  a  fur- 
ther incident  (which  will  presently  be  noticed),  viz.:  that  of 
*making  it  inseparable  and  inalienable  from  the  inheri-  [*234] 
tance  by  devise. 

"But,  besides  heir-looms,  properly  so  called,  there  are  certain 
species  of  chattels  which  may  be  considered  in  the  nature  of 
heir-looms,  and  which  are  also  held  to  pass  to  the  heir  with  the 

22  2  Com.,  427,  428. 

28  2  Com.,  1 7. 

2*  And  Bce  to  the  same  effect,  Roll.  Abr.,  Descent,  E. ;  Doct.  &  Stud., 
dial.  2,  ch.  40,  p.  228.  So  the  heir  may  recover  an  heir-loom  in  detinue. 
Bro.  Abr.  Detinue,  pi.  30. 

319 


*235  .  THE  LAW  OF  FIXTURES.  [CHAP.  VH. 

iiihoritance.  The  things  referred  to,  seem,  however,  to  differ 
from  those  that  are  strictly  heir-k)oms,  because  the  title  of  the 
heir  in  these  cases  does  not  depend  upon  any  local  custom. 
And  an  attention  to  this  distinction  would  remove  the  con- 
fusion which  has  sometimes  arisen  from  classing  under  the 
general  name  of  heir-looms  all  those  personal  chattels  which 
the  laAV  gives  to  the  heir  as  part  of,  or  incident  to,  his  inheri- 
tance." Thus  the  coat-armor,  pennons,  and  arms  of  a  deceased 
ancestor  hung  in  a  chapel,  where  such  ancestor  is  buried,  in 
honor  of  the  deceased,  do  not  belong  to  the  parson ;  and  the  wife 
who  set  them  up,  and  after  her  death  the  heir  of  the  deceased 
may  have  an  action  for  their  removal,  because  they  were  hung 
there  for  the  honor  of  the  ancestor  and  are  in  the  nature  of 
heir-looms,  which  belong  to  the  heir  as  being  the  principal  of 
the  family .25  And  the  law  is  the  same  respecting  grave-stones, 
tombs,  and  the  like.^^ 

In  Atcherley  v.  Vemon,^'''  the  point  was  raised  and  strongly 
insisted  upon  that  MSS.  reports  of  cases  in  chancery  should  go 
to  the  heir-at-law,  as  guardian  of  the  reputation  of  his  ancestor, 
after  the  analogy  of  the  action  which  lies  to  the  heir,  if  the 
tomb  or  monument  of  an  ancestor  be  defaced  or  destroyed. 
The  point  was  not,  however,  decided,  because  all  parties  con- 
sented to  have  them  printed  under  the  direction  of  the  court.^^ 
It  is  said  also  that,  "in  like  manner,  ancient  portraits  and 
family  pictures,  though  not  fastened  to  the  walls  of  the  house, 
accompany  the  inheritance ;  and  the  executor  is  not  allowed  to 
[*235]  *remove  them,  although  they  are  mere  personal  chat- 
tels, "^a  "So,  also,  the  collar  of  S.  S.  and  garter  of  gold,  de- 
scend as  ensigns  of  honor  and  state,  in  the  way  of  heir-looms; 
and  this,  even  although  there  may  be  a  special  bequest  of  all 

25  See  Dame  Wiche's  Case,  9  Edw.  4,  14,  pi.  8  (1469),  cited  in  Corven's 
Case,  12  Co.,  105  (1687) ;  Frances  v.  Ley,  Cro.  Jac,  367  (1615) ;  Godb., 
199,  200;  1  Brownl.,  45;  Noy,  104;  2  Bulst.,  151;  Vin.  Abr.,  Descent,  E; 
Com.  Dig.,  Cemetery,  C;  Co.  Lit.  18  b. 

2c  See  next  note   {supra) ;  also  the  following  pages. 

27  10  Mod.,  529  (1723).  See,  also,  Upton  v.  Lord  Ferrers,  5  Ves.,  801 
(1801);  1  Wms.  Exrs.   (6th  Lond.  ed.),  683. 

28  See  The  Reporters,  308 ;  2  Morgan 's  Law  of  Literature,  §  436. 
29Ferard  Fixt.,  195,  citing  the  authorities  in  note   (1),  supra,  p.  *234. 

320 


CHAP.  VU.]  HEIR-LOOMS,  ETC.  *236 

jewels.^*^  And  so  the  ancient  jewels  of  the  crown  are  accounted 
heir-looms,^^  because  they  are  necessary  to  maintain  the  state, 
and  support  the  dignity  of  the  sovereign  for  the  time  being. ^2 
Again,  as  was  noticed  in  a  former  page,  the  ornaments  of  a 
bishop 's  chapel  are  considered  to  be  of  the  nature  of  heir-looms, 
and  as  such  pass  to  the  successor  in  the  see.^^  And  in  like  man- 
ner, things  belonging  to  ecclesiastical  houses,  and  which  have 
continually  passed  from  successor  to  successor,  have  sometimes 
been  esteemed  as  heir-looms. 

"Moreover,  the  heir  may  sometimes  claim  a  right  to  a  per- 
sonal chattel,  from  the  peculiar  manner  under  which  the  estate 
is  holden.  Thus,  an  ancient  horn,  where  the  tenure  of  the  land 
is  by  cornage,  shall  always  descend  to  the  heir.^^  But  things 
of  this  description  seem  rather  to  resemble  charters  of  inheri- 
tance; or  they  might  perhaps  more  properly  be  ranked  among 
*some  of  the  species  of  possession  which  are  treated  of  [*236] 
in  the  ensuing  pages. 

"But  further,  a  testator  may  by  his  will  constitute  what  has 
been  called  a  q^iasi  heir-loom.     That  is  to  say,  he  may  demise 

80  11  Vin.  Abr.,  167,  citing  the  Earl  of  Northumberland's  Case,  Owen, 
124  (1584).  See,  also,  Swinb.,  part  3,  sec.  6;  Lord  Petre  (or  Peter) 
V.  Heneage,  12  Mod.,  520  (1701);  s.  c,  1  Ld.  Kaym.,  728.  For  an  ex- 
planation of  the  collar  of  S.  S.,  see  Selden  's  Titles  of  Honor.  Mr. 
D 'Israeli,  from  an  article  among  the  Sloane  MSS.,  and  also  Lord  Camp- 
bell in  his  Lives  of  the  Chief  Justices,  relate  that  after  Lord  Coke's  dis- 
missal, the  new  Chief  Justice  sent  to  him  to  purchase  his  collar  of  S.  S. 
But  Lord  Coke  replied  that  "he  would  not  part  with  it,  but  leave  it  to 
his  posterity,  that  they  might  one  day  know  that  they  had  a  Chief  Jus- 
tice to  their  ancestor."  D 'Israeli's  Curiosities  of  Literature,  2d  series, 
Vol.  1,  p.  298.  1  Camp.  Lives  of  the  Chief  Justices,  p.  301,  citing 
Nichols'  Progresses  of  James,  Vol.  3,  228. 

31  2  Bl.  Com.,  14  Vin.  Abr.,  290;  Swinb.,  part  3,  sec.  G,  p.  251;  Co.  Lit., 
18  b. 

32  See  the  note  of  Mr.  Ferard  (page  195),  respecting  certain  disposi- 
tions made  of  the  crown  jewels  of  Knglaiid  by  Kings  .Tames  I.  and  Charles 
I.;  Rymer's  Foed.,  Vol.  XVI.,  p.  641,  and  Vol.  XVIII.,  p.  236. 

i^Ante,  p.  •201. 

•■!4  Piisey  V.  Pusey,  1  Vern.,  273  (1684).  As  to  tenure  by  cornage,  vide 
Co.  Lit.,  107  a.  Of  the  Pusey  and  other  horns,  as  a  charter  or  instru- 
ment of  conveyance,  see  several  curious  particulars  in  the  Archwologia, 
vol.  3,  p.  1,  et  seq.  And  see  Id.,  vol.  1,  p.  168;  vol.  5,  p.  340;  vol.  6, 
p.  42. 

21  321 


*236  THE   LAW   OF   FIXTl-RES.  [CHAP,  VII. 

or  limit  in  strict  settlement,  an  estate  and  capital  mansion, 
together  with  personal  property,  as  the  plate,  pictures,  library, 
furniture,  etc.,  therein,  such  plate,  etc.,  to  be  enjoyed,  together 
with  the  house  and  estate,  unalienable  by  the  devisees  in  su(?- 
cession,  so  far  as  the  law  will  allow. •''^  Limitations  of  this  sort 
depend  upon  the  principles  of  executory  devises,  and  the  doc- 
trines of  equity;  for  a  remainder,  in  the  strict  sense  of  the 
term,  can  only  be  limited  of  a  freehold  estate.  This  subject 
has  given  rise  to  many  questions  of  considerable  nicety;  and 
it  will  be  sufficient,  on  the  present  occasion,  to  observe  gener- 
ally, that  upon  such  a  devise  or  settlement,  the  absolute  inter- 
est in  the  chattels,  subject  to  the  interest  for  life  which  may 
be  created  in  them,  will  vest  in  the  person  who  is  entitled  to 
the  first  estate  of  inheritance,  whether  in  tail  or  in  fee;  and 
upon  his  death  the  property  will  devolve  upon  his  personal  rep- 
resentative. ^^ 

35  Wood.  Vin.  Lee,  vol.  2,  380.  See  Cadogan  v.  Kennet,  Cowp.,  432 
(1776);  Foley  v.  Burnell,  Cowp.,  435  in  notis  (1783);  1  Br.  Ch.,  279;  4 
Bro.  P.  C,  319;  2  Atk.,  82,  321;  3  P.  Wms.,  336.  And  see  Fearne's 
Exec.  Dev.  (6th  ed.  by  Butler),  407;  Harg.  Co.  Lit.,  18  b,  N.  109. 

3fi  The  several  decisions  upon  this  subject,  are  collected  in  Eoberts' 
Treatise  on  Wills,  Vol.  2,  p.  295,  et  seq.  See,  also,  Bridgewater  v.  Eger- 
ton,  2  Ves.  Sr.,  121  (1750);  s.  c,  3  Id.,  Suppl't,  296;  Carr  v.  Lord  Erroll, 
14  Ves.,  478  (1808) ;  Vaughan  v.  Burslem,  3  Bro.  C.  C,  101  (1790)  ;  Gower 
V.  Grosvener  (or  Levison),  Barnard.  Ch.,  54  (1740);  s.  c,  5  Mad.,  337; 
Browncker  v.  Bagot,  19  Ves.,  574  (1816);  Foley  v.  Burnell,  1  Bro.  C.  C, 
274  (1783);  s.  c,  4  Bro.  P.  C,  319;  Eowland  v.  Morgan,  2  Phill.  Ch., 
764  (1848);  s.  c,  6  Hare,  463;  Countess  of  Lincoln  v.  Duke  of  Newcastle, 
3  Ves.  Jr.,  387  (1806);  s.  C,  12  Id.,  218;  2  Koper  on  Leg.,  ch.  22,  sec.  4; 
2  Jar.  on  Wills,  *507.  [Ee  Hill  [1902],  1  Ch.,  537,  807;  see,  also.  Be 
Viscount  Exmouth    (1883),  23  Ch.  D.,   158.] 

Things  consumable  in  the  use,  as  provisions,  liquors,  corn,  hay,  etc., 
cannot  be  limited  as  heir-looms.  See  Boon  v.  Cornforth,  2  Ves.  Sr.,  277, 
280    (1751). 

In  Clarke  v.  The  Earl  of  Ormonde,  1  Jac,  115  (1821),  Lord  Eldon 
observed  "that  heir-looms  are  a  kind  of  property  that  are  rather  favorites 
of  the  Court,"  and  "that  the  Court  in  its  ordinary  decrees  directs  at  first 
only  an  account  of  the  testator 's  personal  estate  not  specifically  bequeathed. ' ' 
It  is  the  duty  of  the  executors  as  far  as  possible  to  preserve  articles 
specifically  bequeathed  as  heir-looms,  according  to  the  testator's  intention; 
and  unless  compelled,  they  ought  not  to  apply  them  to  the  payment  of 
debts,  but  to  devote  to  that  purpose  that  part  of  the  property  given  for 
that  purpose. 

322 


CHAP.  VII.]  HEIR-LOOMS,  ETC.  *237 

*"With  respect  to  heir-looms,  properly  so  called,  viz.,  [*237] 
those  depending  on  custom,  it  appears  that  they  cannot  be  de- 
vised away  from  the  heir;  that  is  to  say,  when  the  inheritance 
to  which  they  belong  descends  to  him.  For  Lord  Coke  lays  it 
down,  that  'if  a  man  be  seized  of  a  house,  and  possessed  of 
divers  heir-looms  that  by  custom  have  gone  with  the  house 
from  heir  to  heir,  and  by  his  will  deviseth  away  the  heir-looms, 
this  devise  is  void.'^''^  Upon  this  it  has  been  observed  by  Pro- 
fessor Woodeson  in  his  Vinerian  Lectures,^^  that  the  opinion  of 
Lord  Coke  is  founded  upon  a  decision  in  1  Hen,  V.,  108,  which, 
he  thinks,  being  prior  to  the  Statute  of  Wills,  could  only  amount 
to  a  determination  against  such  a  devise  of  heir-looms  separately 
from  the  house  by  way  of  personalty;  and  he  supposes  that  at 
present  they  might  be  devised  as  realty  distinct  from  the  estate. 
Upon  reference,  however,  to  the  passage  in  Co.  Lit.,  it  appears 
that  Lord  Coke  grounds  his  opinion  upon  a  principle  which 
applies  as  well  to  a  devise  of  realty  as  of  personalty,  viz. :  that 
the  custom  vests  the  property  in  the  heir  instantly  upon  the 
death  of  the  testator,  and  takes  place  of  the  devise,  which  has 
effect  only  after  the  death  of  the  testator.  And  although  this 
reasoning  has  not  been  universally  assented  to,  yet  the  doctrine 
appears  to  have  been  recognized  by  many  subsequent  authori- 
ties.39 

•"The  owner  of  the  inheritance,  however,  may  during  [*238] 
his  life,  sell  or  dispose  of  these  customary  heir-looms,  as  he  may 

By  the  modern  practice  in  the  Court  of  Chancery,  all  that  is  required 
of  the  tenant  for  life  on  delivery  to  him  of  chattels  limited  as  heir-looms, 
is  an  inventory  signed  by  him,  specifying  that  they  belong  to  the  first 
taker  for  the  particular  jteriod  only,  and  afterwards  to  the  person  in  re- 
mainder, and  an  undertaking  to  take  proper  care  of  the  heir-looms,  except 
in  case  where  danger  is  apprehended,  when  security  may  be  required.  Con- 
duitt  V.  Soane,  1  Colly.  Ch.,  285  (1844);  Foley  v.  Burnell,  1  Bro.  C.  C, 
279  (1783);  s.  c,  4  Bro.  P.  C,  319;  Covenhoven  v.  ShuJcr,  2  Paige,  122, 
131   (1830);  I  Story's  Eq.  Jur.,  §  604,  and  cases  there  cited. 

87  Co.  T.it.,  IS.'S  b.  So,  per  Tiord  Coke,  the  crown  jewels  are  not  de- 
visable by  testament.     Co.  Lit.,   18  b. 

88  Vol.   2,  p.   380. 

80  Com.  Dig.  Biens,  B,  IT;  ITarg.  Co.  Lit,,  18  b;  per  Lord  IMacclosfiold 
Chanc,  1  P.  Wms.,  730.  And  sec  Mr.  Serj.  Hill's  MS.  note,  14  Vin.  Ab., 
290,  in  Line.  Inn  Lib.;  Shep.  Touch.,  432, 

323 


•239  THE  Li\.W  OF  FIXTURES.  [CIIAP.  VII. 

of  the  timber  of  his  estate.'^"  And  if  he  devise  the  house  away 
from  the  heir,  it  is  presumed  that  in  this  ease  the  heir-looms 
woukl  pass  with  the  house  to  the  devisee.  "^^  • 

It  may  be  observed  in  conchiding  this  subject,  that  the  Court 
of  Chancery  has  jurisdiction  of  a  bill  for  the  specific  delivery 
of  an  heir-loom  or  a  chattel  in  the  nature  of  an  heir-loom.'*  ^ 

III,    Annexations  to  the  Freehold  of  the  Church. 

It  has  already  been  stated  in  the  preceding  section,  that  the 
coat-armor,  pennons,  arms,  etc.,  of  a  deceased  ancestor,  hung 
in  a  chapel  in  honor  of  the  deceased,  do  not  belong  to  the  par- 
son, but  to  the  heir.  In  like  manner  he  who  has  erected  on 
the  freehold  of  the  church  a  grave-stone,  tomb  or  the  like,  to 
the  memory  of  another,  may  maintain  an  action  for  any  injury 
done  thereto  in  his  life  time  by  the  parson  or  other  person; 
but  after  the  death  of  him  who  erected  it,  if  any  injury  is  done 
thereto,  the  action  belongs  not  to  his  executor  or  administrator, 
but  to  the  heir  of  him  to  whose  memory  it  was  erected;  and 
this  though  the  article  in  question  be  annexed  to  the  freehold 
of  the  parson.4  3 

[*239]  *  These  remarks  do  not  apply,  however,  where  the  thing 
in  question  was  set  up  without  the  consent  of  the  ordinary  or 

40  2  Bl.  Com.,  429. 

41  That,  if  an  estate  be  devised  in  tail  witli  remainders,  the  devise  over 
is  good  as  to  the  heir-looms  as  well  as  to  the  estate.  See  Mr.  Serj.  Hill's 
MS.  note,  14  Vin.  Ab.,  291. 

42  Earl  of  Macclesfield  v.  Davis,  3  Ves.  &  Bea.,  16  (1814);  Pusey  v. 
Pusey,  1  Vern.,  273  (1684);  Fells  v.  Eead,  3  Ves.  Jr.,  70  (1796).  See, 
also,  Seale  v.  Hayne,  9  L.  T.  (N.  S.),  571  (1864);  s.  c,  12  W.  R.,  239;  9 
Jur.  (N.  S.)    (1338). 

43  See  Corven's  Case,  12  Co.,  105  (1687);  Frances  v.  Ley,  Cro.  Jac, 
367  (1615);  Godb.,  200;  Sabin  v.  Harkness,  4  N.  H.,  415  (1828);  Spooner 
V.  Brewster,  2  C.  &  P.,  34  (1825);  s.  c,  10  Moore,  494;  3  Bing.,  136; 
Co.  Lit,  18  b;  Moore,  878;  3  Inst.,  110,  202;  1  Eoll.  Ab.,  Descent,  E; 
Sid.,  206;  Cro.  Eliz.,  366;  2  Roll.  Rep.,  140;  Doct.  &  Stud.,  pages  305, 
309;  Com.  Dig.,  Cemetery  C.  See,  also,  Hitchcock  v.  Walford,  5  Scott, 
792    (1838). 

As  to  the  right  to  erect  monuments  in  a  church,  see  Degge,  (7th  ed.), 
217;  3  Inst.,  202.  See,  also,  1  B.  &  Aid.,  508;  1  Stra.,  576;  2  Stra.,  1080; 
1  Hagg.,  14,  205;  3  Add.,  15;  1  Lee,  640;  1  Curt.,  880;  8  B.  &  C,  288; 
Rogers'  Eccl.  Law,  187. 

324 


CHAP.  VII,]     ANNEXATIONS    TO    LAND    OF    THE    CHURCH.  *239 

other  proper  authority,  who,  it  seems,  in  such  ease  may  order 
their  removal  withovit  incurring  liability  to  the  heir.-*^  So,  the 
property  of  a  winding  sheet  and  coffin  remains  in  the  executor 
or  other  person  who  was  at  the  charge  of  the  funeral,  and  who 
had  property  therein  when  the  dead  body  was  wrapped  there- 
with and  enclosed  therein,  for  the  dead  body  being  but  a  lump 
of  earth  hath  no  capacity  and  is  not  capable  of  it;  and  a  steal- 
ing of  such  articles  is  a  felony .^^ 

"But  things  that  are  fixed  up  in  a  church  not  in  honor  of 
individuals,  but  for  other  purposes,  as  when  a  church  is  hung 
in  mourning,  or  when  ornaments  or  erections,  as  scaffoldings, 
etc.,  are  put  up  on  public  occasions,  these  become  the  property 
of  the  parson,  in  consequence  of  his  possession  of  the  freehold, 
and  on  the  ground  of  their  being  a  tacit  gift  to  him.^^ 

"With  respect  to  pews  and  seats  erected  in  a  church,  these 
become  by  annexation  parcel  of  the  freehold  of  the  incumbent, 
though  the  use  of  them  is  in  those  who  have  the  use  of  the 
church,"*'  and,  therefore,  if  seats  have  been  annexed  to  the  church 
without   legal   authority,   it  is  said  that  the  property  of  the 

"Palmer  v.  l^piscopum  Exon,  1  Stra.,  576  (1723).     See,  Gib.  Cod.,  454. 

«Hayne's  Case,  12  Co.,  113   (1614-5);  Wms.  Exrs.,   (2d  Ed.),  505. 

[A  coflSn  is  the  property  of  the  person  who  buried  the  deceased,  and 
the  stealing  thereof  is  larceny.     State  v.   Doepke,   68   Mo.,   208    (1878).] 

["There  can  be  no  property  in  a  corpse,  and  there  is  none  in  the 
ehroud  which  surrounds  it,  when  that  corpse  has  been  once  committed 
to  the  tomb."  The  casket  is  in  the  possession  of  the  owners  of  the  fee, 
and  replevin  therefor  will  not  lie.  Guthrie  v.  Weaver,  1  Mo,  App.,  136 
(1876).] 

[A  grantee  acquires  no  right  to  bodies  of  the  dead.  Barlow  v.  Hud- 
son, 5  Ky.  Law  Rep.,  604   (1884).] 

40  Fcrard  Fixt.,  204,  citing  Cases  and  Opinions,  Vol.  1,  p.  273;  also, 
Cramp  v,  Bayley,  Clk.,  Kent  Lent  Ass.,  1819,  cited  in  the  notes  to  the 
edition  of  Dcgge's  Parson's  Counselor,  by  Ellis,  p.  218;  Prideaux's 
Directions,  p.  87,  and  the  authorities  there  referred  to.  In  this  note  he 
says:  "It  is  certainly  true  that  the  soil  and  freehold  of  the  church  and 
churchyard  is  in  the  parson;  but  the  freehold  is  in  him  not  for  his 
own  emolument,  but  for  public  purposes  only,  as  for  supplying  places  for 
sepulture, ' '  etc. 

No  reason  is  seen  why  the  rules  laid  down  in  Chapters  2  and  3  should 
not  be  applied  to  this  relation  so  far  as  applicable. 

"S  H.  7,  12;  Pro.  Abr.  Phattols,  pi.  11;  1  Term,  4.'?0;  5  P.  &  Aid., 
361.     And  see  1  Phill.,  322;   3  Id.,  11. 

oon 


*240  THE  LAW  OF  FIXTURES.  [CIIAP.  VII. 

materials  when  pulled  down  is  in  the  parson,  who  may  sue  the 
wronjr-doer  in  trespass.  But  as  to  seats  put  up  by  the  par- 
ishioners by  good  authority,  it  seems,  according  to  the  ecclesias- 
tical writers,  that  the  property  of  the  materials  upon  removal 
[*240J  *will  be  in  the  parishioners,  and  that  the  church  wardens 
and  not  the  parson  may  maintain  an  action  for  taking  them 
away.^*  With  respect,  however,  to  movable  seats  in  a  church, 
the  party  that  set  them  up  may  remove  them  at  his  pleasure.  "^» 
This  subject  is  in  the  United  States  to  some  extent  regulated  by 
statutes,  which  in  some  of  the  States  declare  pews  in  churches 
to  be  real  and  in  others  personal  property.  In  the  absence  of 
statutes  affecting  the  question,  they  are  considered  to  be  in  the 
nature  of  realty.  The  interest  of  the  pew-holder  in  such  case 
is  an  exclusive  easement  in  for  special  purposes,  and  not  a  title 
to  a  freehold,  the  general  property  in  the  house  and  land  usu- 
ally being  in  the  corporation  that  erected  it.^^ 

"If  a  man  hang  up  bells  in  the  steeple,  they  become  church 
goods,  although  they  may  not  be  expressly  given  to  the  church ; 
he  cannot  therefore  afterwards  remove  them;  and  if  he  does, 
he  may  be  sued  by  the  church-wardens,  to  whom  the  custody 
and  possession  of  the  goods  of  the  church  belong,  though  the 
property  of  them  is  in  the  parishioners.^^  The  property  of  the 
bell-ropes  is  in  the  church-wardens.^^  go^  if  a  man  take  the 
organ  out  of  a  church,  the  church-wardens  may  have  an  action 

48Degge  (7th  ed.),  p.  213;  Burn's  Eccl.  Law.,  Vol.  1,  tit.  Church.  Noy, 
108;  vide,  Shaw's  Par.  Law,  ch,  25,  sec.  9;  Prideaux,  73. 

*9  Degge,  211.  This,  however,  seems  to  be  questionable.  Wats.,  ch.  39; 
Burn's  Just.,  tit.  Churchwardens,  sec.  3.  And  see  Shaw,  ch.  25,  sec.  7; 
Prideaux,   32. 

50  See,  generally,  3  Kent  Com.,  402 ;  1  Wash.  Keal  Prop.,  *9 ;  Wash. 
Easem.,  *515,  and  notes,  and  the  authorities  there  cited.  [Union  Mtg. 
Hs.  V.  Rowell,  66  Maine,  400,  402  (1877);  First  Presbyterian  Soc.  v. 
Bass,  68  N.  IT.,  333,  337  (1893)  ;  see,  also,  Eose  v.  Baltimore,  51  Md., 
256,  270    (1878).] 

5111  H.  4,  12;  Degge,  217;  Burn's  Eccl.  Law,  ub.  sup.;  Com.  Dig., 
Esglise,  F  3;  Cro.  Eliz.,  145;  2  Salk.,  547;  1  Sid.,  281;  2  Keb.,  22. 

That  bells  are  parcel  of  the  freehold  of  the  church,  see  11  H.  4,  12; 
Sid.,  206;  1  Lev.,  136,  s.  c.  As  to  the  origin  of  bells  and  chimes,  and 
some  curious  observations  upon  them,  see  Lutw.  Nelson,  327;  1  Salk., 
164;  Eoll.  Ab.,  Prohibition,  K;  Sid.,  206.  See,  also,  Hook's  Church  Dic- 
tionary, tit.  Bells. 

52  Jackson  v.  Adams,  2  Bing.  N.  C,  403  (1835). 

326 


CHAP.  Vn,]  DEER,   FISH,   ETC.  *241 

of  trespass  against  him ;  because  the  organ  belongs  to  the  parish- 
ioners and  not  to  the  parson,  and  the  parson  cannot  sue  the 
taker  in  the  Ecclesiastical  Court.^^  And  the  succeeding  church- 
wardens may  sue,  although  the  trespass  was  done  in  the  time  of 
their  predecessors.^^ 

*"The  trees  growing  in  a  church-yard  belong  to  the  [*241] 
incumbent,  and  he  may  bring  his  action,  if  they  be  cut  down. ' '  ^^ 

IV.     Deer,  Fish,  etc. 

The  qualified  or  special  right  of  property  said  to  exist  as  to 
game,  that  is  as  to  animals  fei'ce,  naturce  which  are  fit  for  the 
food  of  man,  whilst  they  continue  in  their  wild  state,  seems  to 
be  no  more  than  the  exclusive  right  to  catch,  kill,  and  appro- 
priate such  animals;  or  in  other  words  to  reduce  them  intq 
possession,  for  no  man  hath  an  absolute  property  in  anything 
which  is  ferce,  naturm.^^  This  right  as  to  animals  ferce  na- 
ture is  said  to  exist  ratione  impotentice,  ratione  soli,  or  ratione 
privilegii.  Property  ratione  soli  is  the  common  law  right  which 
every  owner  of  land  has  to  kill  and  take  all  such  animals  ferce 
naturce  as  may  from  time  to  time  be  found  on  his  land,  and  as 
soon  as  this  right  is  exercised  the  animal  so  killed  or  caught 
becomes  the  absolute  property  of  the  owner  of  the  soil.  Proper- 
ty ratione  privilegii  is  the  right  which  by  a  peculiar  franchise 

63  1  Roll.  Abr.,  393. 

04Cro.  Eliz.,  14.5,  179;   1  Leon.,  177. 

6B"Bro.  Abr.,  Trcsp.,  210;   Lindw.,  267;   2  Atk.,  217. 

The  preamble  of  the  ancient  stat.,  35  Ed.  1,  §  2,  entitled  '  Statutum  ne 
Bector  prosternat  Arbores  in  Caemitario,'  recites  that  'Forasmuch  as 
a  church-yard  that  is  dedicated,  is  the  soil  of  the  church,  and  whatsoever 
is  planted  belon^eth  to  the  soil,  it  must  needs  follow  that  those  trees 
which  be  growing  in  the  church-yard,  are  to  be  reckoned  amongst  the 
goods  of  the  church,  the  which  laymen  have  no  authority  to  dispose;  but 
as  the  Holy  Scrii)tures  doth  testify,  the  charge  of  them  is  committed  only 
to  the  priest  to  be  disposed  of,'  etc.  The  statute  then  directs  that  the 
timber  shall  be  applied  to  the  repair  of  the  chancel,  etc.  Of  this  statute, 
Lord  Coke  observes,  that  it  is  but  a  declaration  of  the  common  law,  11 
Co.,   49." 

The  herbage  of  a  chapel-yard  and  the  loppings  of  the  trees  therein  by 
law  belong  to  the  incumbent.     Cox  v.  Ricraft,  2  Lee  Ecc,  373   (17.57). 

GO  See  the  Case  of  the  Swans,  7  Co.,  17  b  (1.592);  Gillct  v.  Mason,  7 
John.,  16   (1810);   2  Bl.  Com.,  .390. 

327 


*o 


242  THE  LAW  OP  FIXTURES.  [CHAP.  VII. 

aucieutly  grantod  by  the  crown  in  virtue  of  its  prerogative, 
one  man  had  of  killing  and  taking  animals  ferce  naturae,  on 
the  land  of  another;  and  in  like  manner  the  game,  when  killed 
or  taken  by  virtue  of  the  privilege,  became  the  absolute  prop- 
[*242]  *erty  of  the  owner  of  the  franchise,  just  as  in  the  other 
case  it  becomes  the  absolute  property  of  the  owner  of  the  soil.^'^ 

Lord  Coke  states  the  rule  thus:  "But  when  a  man  hath 
savage  beasts  ratione  privilegii,  as  by  reason  of  a  park,  warren, 
etc.,  he  hath  not  any  property  in  the  deer,  or  conies,  or  pheas- 
ants, or  partridges;  and  therefore  in  an  action,  quare  parcum 
warrenmmi,  etc.,  fregit  et  intrav'.  S.damas,  lepore^,  cuniculos, 
phasianos,  perdices,  cepit  et  asportavit,  he  shall  not  say  'suos/^s 
for  he  hath  no  property  in  them,  but  they  do  belong  to  him 
ratione  privW  for  his  game  and  pleasure,  so  long  as  they  re- 
main in  the  privileged  place;  for  if  the  owner  of  the  park  dies, 
his  heir  shall  have  them,  ar^d  not  his  executors  or  administra- 
tors, because  without  them  the  park,  which  is  an  inheritance,  is 
not  complete.  "^9 

It  is  also  laid  down  by  Lord  Coke,^'^  that  "if  a  man  buy 
divers  fishes,  as  carps,  breames,  tenches,  etc.,  and  put  them  in 

57  Per  Lord  Westbury  in  Blades  v.  Higgs,  11  H.  L.  Cas.,  621,  631  (1865) ; 
s.  c,  11  Jur.  (N.  S.),  701;  12  L.  T.  (N.  S.),  615,  in  whicK  ease  it  was  held, 
that  game  found,  killed  and  taken  upon  the  land  of  A.  by  a  trespasser 
becomes  the  property  of  A.  as  much  as  if  taken  by  A.  or  his  servant  by 
his  authority.  See,  also,  Sutton  v.  Moody,  1  Ld.  Eaym.,  250  (1697); 
s.  c,  Comyns,  34;  12  Mod.,  144;  Coney's  Case,  Godb.,  122  (1587);  Church- 
ward V.  Studdy,  14  East,  249  (1811);  Graham  v.  Ewart,  11  Exch.,  326, 
346  (18.55);  s.  C,  1  H.  &  N.,  550;  7  H.  L.  Cas.,  331,  344;  Kigg  v.  Lons- 
dale, 1  H.  &  N.,  923  (1857)  ;  s.  c,  11  Exch.,  654;  2  Bl.  Com.,  392,  et  seq. ; 
2  Broom  &  Had.  Com.,  *586,  et  seq. 

[Under  the  civil  law  a  poacher,  though  liable  to  punishment,  was  not 
required  to  restore  his  game.     Hadley's  Roman  Law,  166.] 

58  See,  however,  Davies  v.  Powell,  Willes,  48   (1737),  per  Willes,  J. 

59  Per  Lord  Coke  in  the  case  of  the  Swans  (supra) ;  approved  by  Lord 
Chelmsford  in  Blades  v.  Higgs  {supra),  p.  638. 

"Xor  can  felony  be  committed  of  them;  but  of  those  which  are  made 
tame,  in  which  a  man  by  his  industry  hath  any  property,  felony  may  be 
committed."  Case  of  the  Swans  (supra),  Hex  v.  Brooks,  4  C.  &  P.,  131 
(1829).  See,  also,  2  Bl.  Com.,  343;  1  Hale,  511;  East's  P.  C,  16,  §  41; 
Hawk.,  b.  1,  c.  33,  §§  26,  39;  2  B.  &  C,  944;  T.  Eaym.,  33;  Dalton,  ch. 
156. 

60  Co.  Lit.,  8  a. 

328 


CHAP.  VU.]  DEER,   FISH,   ETC.  *243 

his  pond,  and  dyeth,  in  this  case  the  heire  shall  have  them, 

and  not  the  executors,  but  they  shall  goe  with  the  inheritance; 

because  they  were  at  libertie,  and  could  not  be  gotton  without 

industrie,  or  by  nets  and  other  engines.     Otherwise  it  is,  if 

they  were  in  a  trunke  or  the  like.     Likewise  deere  in  a  parke, 

conies  in  a  warren,  and  doves  in  a  dove-house,  young  and  old, 

*shall  goe  to  the  heire.  "^^     So,  it  is  held,  that  the  owner  [*243] 

of  the  land  upon  which  the  tree  stands,  has  a  qualified  property 

ratione  soli  in  wild  and  unreclaimed  bees  in  a  bee-tree  there- 
on.*2 

But  although  by  the  general  law  deer  in  a  park,  not  tame 
and  reclaimed,  go  to  the  heir-at-law  of  the  owner  of  the  park, 
yet  when  tame  and  reclaimed  they  become  personal  property 
and  go  by  law  to  the  personal  representatives  of  the  OAvner  of 
them,  and  not  to  the  heir  of  the  owner  of  the  park  in  which 

81  See  Greye's  Case,  Owen,  20  (1594-5);  s.  c,  Cro.  Eliz.,  372;  Gouldsb., 
29,  pi.  24,  where  trespass  by  the  heir  against  the  executors  for  taking  the 
fish  with  a  net  was  held  maintainable;  11  Vin,  Abr.,  166;  Went.  Off.  Ex., 
52,  53,  chap.  5  (or  p.  143,  Am.  reprint,  1832,  of  14tb  Lond.  ed.)  ;  7  Co., 
17  b;  11  Co.,  50  b;  Swinb.,  759;  Keilw.,  118;  4  Leon.,  240;  1  Roll.  Abr., 
916;  Com.  Dig.,  Biens,  B,  F;  Bac,  Executors,  H  3;  Shep.  Touch.,  469, 
See,  also,  18  Ed.  4,  p.  14;  Godolph.  Orph.  Leg.,  126;  Noy's  Max.  (9th 
ed.),  230,  239;  and  the  cases  cited  in  the  preceding  notes. 

02Gillet  V.  Mason,  7  John.,  16  (1810);  Ferguson  v.  Miller,  1  Cow.,  243 
(1823);  Goff  v.  Kitts,  15  Wend.,  550  (1836);  Idal  v.  Jones,  2  Dev.  Law, 
162  (1829).  See,  also.  Cock  v.  Weatherby,  13  Miss.,  333  (1845);  Adams 
V,  Burton,  43  Vt.,  36  (1870).     [State  v.  Ecpp,  104  Iowa,  305,  306  (1898).] 

[Bees  and  honey  in  a  tree  belong  to  the  owner  of  the  tree,  as  against 
a  finder;  nor  will  a  local  usage  affect  the  rule.  Fisher  v.  Steward,  Smith, 
60    (N.  H.,  1804).] 

It  seems  more  proper  to  say  the  ' '  exclusive  right  of  appropriation, ' ' 
unless  the  words  "qualified  property"  are  used  in  the  same  sense  as  at 
the  beginning  of  this  section.     See  Blades  v.  Higgs,  there  cited. 

Oysters  planted  by  an  individual  in  a  bed  clearly  designated  and  marked 
out  in  navigable  waters  which  are  common  to  all  the  inhabitants  of  the 
State,  at  which  place  no  oysters  were  growing  at  the  time,  are  the  prop- 
erty of  him  who  planted  them,  and  he  may  maintain  an  action  for  their 
unlawful  removal  by  another.  Fleet  v.  Hegeman,  14  Wend.,  42  (1S35), 
Decker  v.  Fisher,  4  Barb.,  592  (1848);  Lowndes  v.  Dickerson,  34  Barb., 
586  (1861).  See,  also,  Brinckerhoff  v.  Starkins,  11  Barb.,  248  (1851); 
Arnold  v.  Mundy,  6  N.  ,J.  Law,  1  (1821);  State  v.  Taylor,  27  N.  J.  Law, 
117  (1858).  [See  Post  v.  Kreischer,  103  N.  Y.,  110  (1SS6),  reversing  39 
Supr.  Ct.   (32  Hun),  49   (1884);  The  Swift  [1901]  P.,  168.] 

329 


*244  TUE   LAW  OF   FIXTURES.  [CHAP.  VII. 

they  are  kept.^'^  And  doer  iii  a  park,  though  it  be  an  ancient 
and  legal  park,  may  be  so  tame  and  reclaimed  as  to  pass  to  the 
personal  representatives  as  personal  property.  The  question 
is  whether  they  are  tame  and  reclaimed  or  not,  which  must  be 
determined  with  reference  to  the  state  and  condition,  nature 
and  habits  of  the  animals,  the  nature  and  dimensions  of  the 
place  where  they  are  kept,  and  the  mode  in  which  they  are 
treated.^^ 

[*24:4]  *And  in  like  manner  if  the  testator  had  any  tame 
pigeons,  conies,  pheasants,  partridges,  etc.,  they  shall  go  to  the 
executors;  and  so,  though  not  tame,  if  they  were  taken  and 
kept  alive  in  any  room,  cage  or  like  receptacle.  So,  also,  it  is 
said,  as  to  young  pigeons,  though  not  tame,  being  in  the  dove- 
house  and  not  able  to  fly  out;  yet  their  dams,  the  old  ones, 
shall  go  to  the  heir  with  the  dove-house.^^  Hawks  reclaimed 
and  hounds,  though  there  are  some  old  authorities  to  the  con- 
trary,^*' have  also  been  considered  to  go  to  the  executor  instead 
of  the  heir.^'^ 

Perhaps  it  may  properly  be  said  that  the  reason  of  the  rule 
that  deer  in  a  park  not  tame  and  reclaimed,  fish  in  a  pond,  and 
other  animals  ferce,  naturce,  do  not  go  to  the  personal  repre- 
sentatives of  the  owner  of  the  land,  is,  that  they  are  not  the 
subjects  of  absolute  property  so  as  to  pass  to  the  personal  rep- 
resentatives; and  they  pass  to  the  heir  not  by  reason  of  his 
succeeding  to  a  right  of  property  of  his  ancestor  in  them,  but 
by  reason  of  his  succession  to  the  land,  and  the  exclusive  right' 

63  Morgan  v.  Earl  of  Abergavenny,  8  C.  B.,  768  (1849).  See,  also, 
Davies  v.  Powell,  Willes,  46  (1737);  Off.  Exrs.  (Am.  ed.,  1832),  143;  Law 
of  Test.,  379. 

64  Morgan  v.  Earl  of  Abergavenny  (supra).  See,  also,  3  Reeve's  Hist., 
378. 

65  Off.  Ex.  (Am.  ed.,  1832),  143;  Law  of  Test.,  379;  Bac.  Abr.,  Execu- 
tors, H  3.  See,  also,  2  Bl.  Com.,  392.  The  statement  that  young  pigeons 
go  to  the  executor  has,  however,  been  questioned.  See  Ferard  Fixt.,  202 
note.  Larceny  may  be  committed  of  pigeons  so  tame  as  to  come  home 
every  night  to  roost  in  wooden  boxes  hung  on  the  outside  of  the  owner 's 
house.     Eex  v.  Brooks,  4  C.  &  P.,  131   (1829). 

66Swinb.,  part  7,  §  10;  Noy's  Max.  (9th  ed.),  144,  230,  239. 

67  Ferard  Fixt.,  200;  Off.  Ex.  (Am.  ed.,  1832),  143;  Godolph.  Orph. 
Leg.,  part  2,  ch.  13,  and  part  3,  ch.  21;  Bac.  Abr.,  Executors,  H  3;  1  Wms. 
Exrs.    (6th  Lend,  ed.),   664. 

330 


CHAP.  Vn.]  DEER,   FISH,   ETC.  *245 

of  taking  or  reducing  them  to  possession  ratione  soli.^^  But, 
however  this  may  be,  they  are  so  far  a  part  of  the  inheritance 
that  waste  may  be  committed  in  respect  of  them.  Thus,  if  a 
tenant  for  life  of  a  park,  vivary,  warren,  or  dove-house,  kills  so 
many  of  the  deer,  fish,  game  or  doves,  that  there  is  not  suffi- 
cient left  for  the  stores,  it  is  waste.^* 

It  is  to  be  remarked  that  the  cases  above  referred  to,  where 
game,  fish,  etc.,  are  said  to  go  to  the  heir  instead  of  to  the  per- 
sonal representative,  are  cases  where  the  ancestor  had  an  estate 
of  inheritance,  and  the  question  arose  between  the  heir  suc- 
*ceeding  to  the  estate  of  his  ancestor  and  the  personal  [*245] 
representative  taking  no  interest  in  the  land.  But  where  the 
interest  of  the  ancestor  in  the  land  is  only  a  chattel  interest, 
which  passes  to  the  personal  representative  on  his  decease,  the 
case  is  different ;  for,  in  such  a  case,  the  res  principalis  passing 
to  the  personal  representative  would  carry  with  it  the  res  acces- 
soria,  the  heir  having  no  interest  in  either.''''^ 

68  See  Ferard  Fixt.,  199,  note  (d). 

69  1  Cru.  Dig.,  tit.  3,  ch.  2,  §  20;  Vin.  Abr.,  Waste,  E;  Co.  Lit.,  53  a. 
[See  Robens  v.  Barrett,  73  Supr.  Ct.   (66  Hun),  189   (N.  Y.,  1892).] 

70  See  Ferard  Fixt.,  201;  Off.  Ex.,  153;  Godolph.  Orph.  Leg.,  part  2,  eh. 
13;  Harg.  Co.  Lit.,  8  a,  N.  41;  11  Vin.  Abr.,  166;  1  Wms.  Exrs.  (6th 
Lond.  cd.),   666. 


331 


[*246]  CHAPTER  VIIT. 

EMBLEMENTS,!  ETC. 

The  species  of  property  forming  the  subject  of  this  chapter, 
and  which  is  often  compared  with  fixtures,  might  properly 
have  been  considered  in  connection  with  the  preceding  chap- 
ters discussing  the  law  of  fixtures  as  between  the  same  parties; 
but  in  order  to  avoid  as  far  as  possible  scattering  the  subject- 
matter  of  this  chapter  throughout  the  body  of  the  work,  it  has 
been  thought  advisable  to  present  a  summary  view  of  the  sub- 
ject in  its  different  relations  in  a  distinct  chapter. 

Vegetable  productions,  as  the  fruit  or  other  parts  of  a  plant, 
when  severed  from  the  body  of  it,  or  the  whole  plant  itself, 
when  severed  from  the  ground,  are  evidently  personal  property 
passing  to  the  personal  representatives.^  And  so  is  peat  dry 
[*247]   *or  in  process  of  curing  upon  a  meadow.^     But  turf, 

1  The  law  of  Emblements,  etc.,  has  been  considerably  changed  in  Eng- 
land by  the  statute  of  14  &  15  Vict.,  ch.  25  (1851),  entitled  "An  Act  to 
improve  the  Law  of  Landlord  and  Tenant  in  relation  to  Emblements,  to 
Growing  Crops  seized  in  Execution,  and  to  Agricultural  Fixtures,"  which 
see.     See,  also,  Haines  v.  Welch,  L.  E.  4  C.  P.,  91    (1868). 

2  1  Wms.  Exrs.  (6th  London  ed.),  668;  2  Bl.  Com.,  389;  Johnson  v. 
Barber,  10  111.,  431  (1849),  grass.  [See,  ante,  p.  *44;  also  Simonton  v. 
Cornelius,  98  N.  C,  433,  437   (1887).] 

The  rule  is  the  same  when  severed  by  construction  of  law,  as  by  a  deed 
of  the  trees,  grass,  etc.,  to  a  third  person.  See  post  in  this  chapter,  p. 
*270.  However,  in  Brackett  v.  Goddard,  54  Me.,  309  (1866),  it  was  held, 
that  hemlock  timber  trees  cut  down  by  the  owner  of  the  land  for  the 
purpose  of  removing  the  bark  therefrom,  and  left  with  the  tops  on,  the 
owner  of  the  land  intending  to  cut  off  the  tops,  and  haul  the  trees  off  as  logs 
to  be  sawed  during  the  ensuing  winter,  passed  by  a  conveyance  of  the  land, 
though,  as  it  was  said  in  the  opinion  of  the  court,  it  would  have  been 
otherwise  had  they  been  cut  into  logs  or  hewed  into  timber.  So  held  ap- 
parently after  the  analogy  to  the  case  of  timber  trees  blown  down  or 
severed  by  a  stranger.     [See  post,  p.  *305.] 

3  Giles  V.  Stevens,  13  Gray,  146  (1859). 

332 


CHAP.   Vm.]  EMBLEMENTS,   ETC.  *247 

gravel  and  chalk  unsevered  are  part  of  the  freehold.^  And  so 
are  fruit  or  other  trees  standing  and  growing  on  the  land,^  and 
the  fruit  or  produce  of  them,  while  unsevered;  and  hence  on 
the  death  of  the  owner  of  the  land  they  go  w^itli  the  land  to  the 
heir  and  not  to  the  executor  or  administrator.*'  Among  the 
fruits,  etc.,  that  if  hanging  on  the  trees  at  the  time  of  the  death 
of  the  ancestor,  will  go  to  the  heir  and  not  to  the  personal  rep- 
resentative, may  be  mentioned  apples,  pears,  nuts,  etc.,  and 
other  natural  fruits,  or  fructus  naturales  as  distinguished  from 

4  Amiles  (or  Amiers)  v.  Chambers,  1  Mod.,  35  (1681);  s.  c,  2  Keb., 
596.  [Burns  v.  Fleming  (1880),  8  Sess.  Cas.,  4th  Ser.,  226.]  See,  also, 
Stoutfil's  Case,  2   Mod.,   77    (1688);   March,   58,  pi.   89. 

[The  rules  as  to  emblements  are  not  applicable  to  ice.  Higgins  v, 
Kusterer,  41  Mich.,  318   (1879).] 

5  Adams  v.  Smith,  Breese,  221  (1828);  Bank  of  Lansingburg  v.  Crary, 
1  Barb.,  542  (1847)  ;  Liford's  Case,  11  Co.,  48  a  (1614)  ;  2  Bl.  Com.,  123; 
Com.  Dig.,  Biens,  H;  Bac.  Abr.,  Exrs.,  H  3.  [Asher  Lumber  Co.  v. 
Cornett,  23  Ky.  Law  R.,  602,  603  (1901);  Emerson  v.  Shores,  95  Me., 
237,  239  (1901);  Donworth  v.  Sawyer,  94  Me.,  242  (1900);  Ee  Ainslie 
(1885),  30  Ch.  D.,  485.] 

6  Liford's  Case,  11  Co.,  48  a  (1614);  Com.  Dig.,  Biens,  H;  Swinb.,  pt. 
7,  §  10,  pi.  8;  Bac.  Abr.,  Exrs.,  H  3. 

As  to  the  particular  interest  of  a  lessee  in  the  trees  on  the  demised  prem- 
ises, see  Liford's  Case  {supra);  Channon  v.  Patch,  5  B.  &  C,  897  (1826); 
Berry  v.  Heard,  Cro.  Car.,  242   (1622). 

As  to  his  interest  in  the  hedges  and  bushes  cut  upon  the  premises,  see 
Berriman  v.  Peacock,  9  Bing.,  384  (1832). 

Crude  turpentine  which  has  formed  on  the  body  of  the  tree  and  is  usu- 
ally known  as  '  *  scrape, ' '  being  that  portion  which  does  not  run  into  the 
box  and  which  is  removed  after  it  has  formed  in  sufficient  quantities,  by 
scraping  it  from  the  tree,  is  personal  property  and  belongs  to  the  person 
who  has  lawfully  produced  it  by  cultivation.  It  is  an  annual  product  of 
labor  and  industry,  and  although  it  adheres  to  the  body  of  the  tree,  it  is 
not  a  part  of  the  realty.  The  turpentine  crop  may  be  properly  classed 
with  fructus  industrialcs,  for  it  is  not  the  spontaneous  product  of  trees, 
but  requires  annual  labor  and  cultivation.  Lewis  v.  McNatt,  65  N.  C,  63 
(1871).  So,  also,  as  to  turpentine  in  boxes,  in  a  state  to  be  dipped  up. 
Branch  v.  Morrison,  5  Jones'  Law,  16  (1857);  s.  C,  6  Id.,  16. 

In  Purner  v.  Piercy,  40  Md.,  212  (1874),  tlio  (ipinioii  is  expressed 
(obt(er),  "that  a  growing  crop  of  peaches  or  other  fruit  requiring  period- 
ical expense,  industry  and  attention  in  its  yield  and  proilnction,  may  well 
be  classed  as  fnicliiK  iiuJnstridlr.i,  and  not  subject  to  the  4th  section  of  the 
Statute"  of  Frauds. 

333 


*248  THE   LAW   OF   FIXTURES.  [CHAP.    VIII. 

fructus  industrialcs.''  So  as  to  grass  growing  upon  the  land  at 
[*248]  the  time  of  *the  death  of  the  ancestor,  even  if  sown  from 
the  seed  and  though  fit  to  be  mowed  down  for  hay.^  And  so 
as  to  hedges,  bushes,  etc.,  for  these  are  said  to  be  the  natural 
or  permanent  i)rofit  of  the  earth,  and  are  reputed  parcel  of  the 
ground  whereon  they  grow,^ 

Where,  however,  growing  timber  trees,  etc.,  are  severed  from 
the  soil  either  actually  or  by  construction  of  law,  as  where  a 
tenant  in  fee  simple  legally  grants  away  the  trees  without  the 
land,  or  sells  the  land  reserving  the  trees  from  the  sale,  the 
trees  being  legally  separated  from  the  land  are,  though  in  fact 
united  to  it,  personal  property  and  go  to  the  personal  repre- 
sentative.i" 

7Bac.  Abr.,  H  3;  Off.  Ex.  (Am.  ed.,  1832),  145;  Craddoek  v.  Eiddles- 
barger,  2  Dana,  205  (1834);  Swinb.,  pt.  7,  §  10;  Godolph.,  122;  Flud  v. 
Flud,  Freem.  Ch.,  210  (1696)  ;  Kain  v.  Fisher,  6  N.  Y.,  597  (1852).  [See 
Sparrow  v.  Pond,  49  Minn.,  412  (1892).] 

It  seems  that  not  only  natural  fruits,  but  all  growing  fruits,  though 
produced  by  skill  and  culture,  go  to  the  heir.  See  Ferard  Fixt.,  207,  note. 
Swinb.,  pt.  7,  §   10. 

8Bac.  Abr.,  Exrs.  H  3;  Godolph.,  122;  Off.  Ex.,  145;  Kain  v.  Fisher 
(supra)  ;  Bank  of  Lansingburg  v.  Crary  (supra) ;  1  Wms.  Exrs.  (6th 
Lond.  ed.),  672.  [Evans  v.  Hardy,  76  Ind.,  527,  532  (1881);  Evans  v. 
Iglehart,  6  Md.,  171,  188  (1834)  ;  Eeiff  v.  Reiff,  64  Pa.  St.,  134  (1870)  ; 
see,  also,  Eogers  v.  Elliott,  59  N.  H.,  201,  202  (1879).] 

[Growing  grass  belongs  to  the  devisee  of  the  land.  Ee  Chamberlain, 
140   N.   Y.,   390,    392    (1893).] 

An  opinion  has  been  expressed,  however,  that  the  artificial  grasses,  such 
as  clover,  saint-foin,  and  the  like,  by  reason  of  the  greater  care  and  labor 
necessary  for  their  production,  are  within  the  rule  of  emblements.  See 
1  Wms.  Exrs.  (6th  Lond.  ed.),  672;  4  Burn's  Eccl.  Law  (9th  ed.),  410; 
Graves  v.  Weld,  5  B.  &  Ad.,  105  (1833).  [See,  also,  McNee  v.  Carnie 
(1866),  Gnithrie's  Sel.  Gas.,  345,  346.] 

[Alfalfa  is  a  perennial  plant  which,  when  properly  cared  for,  produces 
annual  crops  of  hay  or  pasturage  for  a  indefinite  number  of  years,  and 
can  not  be  regarded  as  a  "growing  crop."  Miller  v.  County  of  Kern, 
137  Cal.,  516   (1902).] 

9  1  Wms.  Exrs,  (6th  Lond.  ed.),  668.  [Kirchman  v.  Lapp,  19  N.  Y. 
Supp.,  831,  832  (1892);  Ee  Ainslie  (1884),  28  Ch.  D.,  89,  92;  (1885)  30 
Ch.  D.,  485.] 

loStukeley  v.  Butler,  Hob.,  173  (1615);  Off.  Ex.  (14th  ed.),  148;  Com. 
Dig.,  Biens,  H;  1  Wms.  Ex'rs.  (6th  Lond.  ed.),  668,  and  cases  cited.  See, 
also,  Liford's  Case,  11  Co.,  50  a  (1614).     [See,  post,  p.  *270.] 

334 


CHAP.   Vm.]  EMBLEMENTS,    ETC.  *249 

There  are,  however,  certain  other  vegetable  products  of  the 
earth,  which  although  they  are  annexed  to  and  growing  upon 
the  land  at  the  time  of  the  occupier's  death,  or  at  the  time  of 
the  termination  of  his  estate  in  the  land,  yet,  as  between  the 
personal  representatives  of  the  person  seized  of  the  inheritance 
and  the  heir,  and  between  the  personal  representatives  of  the 
tenant  for  life  and  the  remainderman  or  reversioner,  and  be- 
tween an  ordinary  landlord  and  tenant,  are  in  some  cases  con- 
sidered as  chattels  and  pass  or  are  removable  as  such.^^  These 
are  usually  called  emblements,^  ^  aj^j  consist  of  those  vegetable 
•products  of  the  earth,  as  corn,  etc.,  which  are  produced  [*249] 
annually  by  labor,  industry,  and  manurance,  and  are  called 
fructus  industrialcs,  as  distinguished  from  those  spontaneous 
or  natural  products  which  are  called  fructus  naturales.  Crops 
of  the  former  nature  (viz.  fructus  industriales) ,  sown  or  planted 
by  the  owner  of  the  inheritance,  on  his  death  before  the  same 
are  harvested,  go  to  the  executor  and  not  to  the  heir,  as  a  com- 
pensation, as  it  is  said,  for  the  labor  and  expense  of  tilling, 

11  Emblements  seem  in  most  respects  to  be  considered  as  chattels,  and 
are  in  this  respect  to  be  distinguished  from  fixtures  which  during  annexa- 
tion are  in  many,  if  not  most,  respects  to  be  considered  as  realty.  See 
this  subject  more  fully  considered  post,  in  this  chapter. 

[Until  actual  severance,  crops,  like  fixtures,  are  real  property,  as  has 
been  held  whenever  the  point  is  directly  raised.  See  Bagley  v.  Columbus 
B'y  Co.,  98  Ga.,  6li6  (1896),  where  the  opinion  of  the  court,  written 
by  Simmons,  C.  J.,  is  excellent  and  exhaustive.  However,  they  very  fre- 
quently have  the  incidents  of  personal  property.  As  Chief  Justice  Sim- 
mons, at  p.  632,  says:  "A  growing  crop  is  a  sort  of  legal  chameleon 
constantly  changing  color  to  meet  the  emergency  of  each  particular  class 
of  cases  in  which  the  question  arises  whether  it  is  to  be  considered  as 
personalty  or  as  realty."  In  this  opinion,  p.  639,  the  distinction  between 
growing  frops  and  omhlcments  is  pointed  out.  It  is  to  be  regretted  that 
courts  frequently  speak  of  growing  crops  as  personal  property  when  it  is 
simply  meant  that  the  rules  which  govern  personal  property  are  to  be  ap- 
plied in  that  particular  case.  See  Fish  v.  Capwell,  18  R.  I.,  667,  672 
(1894).] 

[drowing  crops  are  often  considered  personal  property.  Favorite  v. 
DeardorfT,  84  Ind.,  .555,  557   (1881).] 

[As  between  landlord  and  tenant,  the  annual  crop  constitutes  no  part 
of  the  freehold.     Perry  v.  Hamilton,  138  Iiid.,  271,  273   (1894).] 

12  1  Wms.  Exrs.  (6th  Lond.  ed.),  670. 

335 


•250  THE  LAW  OP  FIXTURES.  [CIIAP.   VIII. 

iiianurins:  and  sowing  the  land.^''  It  seems,  however,  that  the 
better  reason  of  the  rule,  as  between  executor  and  heir  of  the 
tenant  in  fee,  is,  as  expressed  by  Swinburne,^'*  that  the  seed  has 
been  "sowue  in  the  ground  by  man's  industry  in  hope  not  to 
continue  there  still,  but  to  be  separated  and  reaped  with  in- 
crease ere  long;"  and  "that  these  industrial  fruits  were,  in 
the  purpose  and  intention  of  the  deceased,  separable  and  mova- 
ble, even  when  the  will  was  first  made,  albeit  they  were  not  actu- 
ally separated  or  removed  from  the  ground ;  which  purpose  and 
intention  or  destination  is  sufficient  in  a  testament  to  make 
them  movable,"  reasons  which  seem  to  make  this  branch  of 
the  law  harmonize  with  w^hat  has  hereinbefore  been  attempted 
to  be  shown  to  be  the  controlling  element  in  determining  the 
question  of  the  removability  of  ordinary  fixtures.  However, 
the  reason  first  above  stated,  to  which  may  be  added  the  ground 
of  encouragement  of  husbandry  and  the  public  benefit,  seems 
applicable  to  relations  other  than  that  of  executor  and  heir  of 
tenant  in  fee.^^  And  in  the  case  of  tenancies  for  life,  the  estate 
being  determined  by  the  act  of  God,  the  maxim  "Actus  Dei 
nemini  facit  injuriam"  furnishes  an  additional  and  strong 
ground  for  the  adoption  of  the  rule  in  question. 

The  doctrine  of  emblements  extends  not  only  to  corn  and 
grain  of  all  kinds,  though  growing,  but  also  to  everything 
else  of  that  kind  which  is  produced  annually  by  labor, 
cultivation  and  manurance;^^  as  saffron,  flax,  hemp,  and  the 
[*250]  *like;^'^  and  melons  of  all  kinds.i^  The  doctrine  is  con- 
sidered  also  to   include  hops,   though   not  sown,    and   though 

13  See  McCormick  v.  McCormick,  40  Miss.,  760  (1866);  1  Wms.  Exrs., 
671  and  authorities  cited.  [See,  imst,  p.  *252;  and  Sparrow  v.  Pond,  49 
Minn.,  412,  417   (1892).] 

"Part  7,  §  10. 

ir.  2  Bl.  Com.,  122.     [Chappell  v.  Boyd,  56  Ga.,  578,  582   (1876).] 

icBac.  Abr.,  Executors,  II  3;  Off.  Ex.,  147;  Co.  Lit.,  55  b;  1  Wms.  Exrs. 
(6th  Lond.  ed.),  671;  Lewis  v,  McNatt,  65  N.  C,  63  (1871).  See  this 
case,  stated  ante,  p.  *247  note. 

"Bac.  Abr.,  Exrs.,  H  3;  Off.  Ex.  (14th  ed.),  147;  1  Wms.  Exrs.  (6th 
Lond.  ed.),  671;   Co.  Lit.,  55  b. 

18  Off.  Ex.  (14th  ed.),  153.  The  opinion  is  here  expressed  that  arti- 
chokes go  to  the  heir,  as  not  having  such  yearly  setting  and  manurance  as  to 
sever  them  from  the  soil.  Sed  quaere.  See  1  Wms.  Exrs.  (6th  Lond.  ed.), 
671  n. 

336 


CHAP.   VIH.]  EMBLEMENTS,    ETC.  *250 

springing  from  ancient  roots,  as  they  are  grown  by  manuranee 
and  industry  of  the  owner.^^     So  also  it  includes  potatoes.^" 

But,  if  a  man  sows  acorns,  or  plants  young  fruit  or  other 
trees,  these  would  not  be  considered  emblements,  because  they 
yield  no  present  annual  profit.^i     The  doctrine  of  emblements 

"Co.  Lit.,  55b,  note  (1);  Off.  Ex.  (14th  ed.),  147;  1  Wms.  Exrs.  (6th 
Lond.  ed.),  671;  Latham  v.  Atwood,  Cro.  Car.,  515  (1636);  Flud  v.  Flud, 
Freem.  Ch.,  210  (1696),  In  Fox  v.  Brissac,  15  Cal.,  223  (1860),  grape 
vines  planted  by  a  tenant  for  sale,  and  growing  in  a  nursery,  were  con- 
sidered as  sustaining  the  same  relation  to  the  freehold  as  crops  of  grain, 
and  a  recovery  was  had  therefor  in  trespass  by  the  tenant  against  tho 
landlord,  who  had  entered  and  forcibly  ejected  the  tenant  (there  being 
no  clause  of  re-entry  in  the  lease),  and  refused  the  tenant  permission  to 
gather  and  remove  his  crops  and  grape  vines.  See,  also,  Wintermute  v. 
Light,  46  Barb.,  278    (1866),  relating  to  wine  plants. 

[Sugar-cane  is  subject  to  the  law  of  emblements,  although  it  is  not 
sown  and  may  require  more  than  a  year  to  mature,  as  it  is  the  result  of 
annual  care  and  labor.  Nawahi  v.  Hakalau  Plantation  Co.,  14  Hawaii, 
460,  461    (1902).] 

20  Per  Bailey,  J.,  in  Evans  v.  Eoberts,  5  B.  &  C,  832  (1826).  [SaU- 
monie  Mining  Co.  v.  Wagner,  2  Ind.  App.,  81,  83   (1891).] 

The  opinion  is  expressed  in  Wentworth's  Office  of  an  Executor  (14th 
ed.,  p.  152),  that  the  roots  of  carrots,  parsnips,  turnips,  skerrets,  and  such 
like,  arising  from  yearly  sowing,  go  to  the  heir  and  not  to  the  executor, 
for  the  reason  that  the  executor  cannot  get  them  without  breaking  the 
soil.  The  same  opinion  is  expressed  in  Godolphin,  pt.  2,  ch.  14,  sec.  1. 
But  no  good  reason  is  seen  for  the  distinction,  and  it  probably  is  not 
now  the  law.  See  1  Wms.  Exrs.  (6th  Lond.  ed.),  671,  note;  Co.  Lit.,  55 
b;  2  Bl.  Com.,  123;  Dunne  v,  Ferguson,  Hayes,  540   (1832). 

21  See  Co.  Lit.,  55  b;  Com.  Dig.  Biens,  G  1,  H;  2  Bl.  Com.,  123.  These 
authorities  relate  to  lessor  and  lessee,  but  on  familiar  principles  must  be 
applicable  also  to  the  relations  of  executor  and  heir,  tenant  for  life  and 
remainderman,  etc.  Whether  trees,  shrubs,  etc.,  set  out  by  nurserymen, 
and  gardeners  (the  owners  of  the  land),  for  the  purposes  of  sale,  may, 
as  between  the  heir  and  executor  of  tenant  in  fee,  be  removed  by  the 
latter,  appears  not  to  have  been  decided;  though,  as  has  been  already 
stated  (avie  p.  •107),  as  between  landlord  and  tenant,  they  are  removable 
by  the  latter  during  his  term,  but  rather  as  being  analogous  to  trade 
fixtures  than  emblements.  On  principle  and  analogy  to  the  doctrine  of 
fixtures  proper,  they  would  probably  be  held  to  go  to  the  heir  with  the 
inheritance.  They  have  been  held  to  pass  by  a  conveyance  or  mortgage 
of  the  land,  in  which  cases  the  rule  (when  not  affected  by  the  particular 
terms  of  the  instrument)  is  the  same  as  })etween  executor  and  heir.  Smith 
V.  Price,  39  111.,  28  (1865);  Price  v.  Brayton,  19  Iowa,  .109  (1865); 
Maples  V.  Millon,  31  Conn.,  298  (1863).     [Duboia  v.  Bowles,  30  Colo.,  44, 

22  337 


•251  THE   LAW   OF   FIXTURES.  [CHAP.   VIII. 

1*251]  extends  *to  a  crop  of  that  species  only  which  ordinarily 
repays  the  labor  by  which  it  is  produced,  within  the  year  in 
which  that  labor  is  bestowed,  though  the  crop  may  in  extraor- 
dinary seasons  be  delayed  beyond  that  period  ;22  and  the  doc- 
trine extends  to  no  more  than  a  single  crop,  though  the  effect 
of  the  labor  and  manurance  may  continue  for  several  crops.- ^ 
The  cases  do  not  seem  to  lay  down  any  different  degrees  of 

61  (1902);  see,  also,  Wallace  v.  Dodd,  136  Cal.,  210  (1902);  Holmberg 
V.  Johnson,  45  Kan.,  197  (1891).  But  see  Batterman  v.  Albright,  122 
N.  Y.,  484   (1890).] 

[Nursery  stock  passes  to  the  mortgagee  of  the  land  as  against  a  sub- 
sequent chattel  mortgagee.  "While  the  owner  might  sell,  at  the  proper 
season,  in  the  ordinary  course  of  trade,  such  of  the  stock  as  was  suitable 
for  transplanting,  and  the  mortgagee  of  the  land  could  not  reclaim  it,  it 
is  otherwise  as  to  a  sale  of  or  giving  a  chattel  mortgage  on  the  entire 
stock  without  actual  severance,  and  without  regard  to  its  being  in  proper 
condition  for  transplanting.     Adams  v.  Beadle,  47   Iowa,  439    (1877).] 

[The  word  "crop,"  taken  in  its  most  comprehensive  sense,  includes 
fruits  grown  upon  trees,  but  the  trees  themselves  are  not  included  in  that 
term,  and,  as  such,  are  not  exempt  from  taxation.  Cottle  v.  Spitzer,  65 
Cal.,  456,  458  (1884.)  See,  as  to  blackberries.  Sparrow  v.  Pond,  49 
Minn.,  412    (1892).] 

[In  Mason  v.  Lemmon,  4  Ohio  Dec,  322,  323  (1895),  it  is  said  that 
grape  crops,  requiring  cultivation,  are  emblements.] 

22  Graves  v.  Weld,  5  B.  &  Ad.,  105,  118  (1833).  In  this  case  the  tenant 
for  a  term  determinable  upon  a  life  sowed  the  land  in  the  spring  first 
with  barley  and  soon  after  with  clover.  The  life  expired  in  the  following 
summer.  In  the  autumn  the  tenant  mowed  the  barley,  together  with  a 
little  of  the  clover  plant  which  had  sprung  up.  The  clover  so  taken  made 
the  barley  straw  more  valuable  by  being  mixed  with  it;  but  the  increase 
of  the  value  did  not  compensate  for  the  expense  of  cultivating  the  clover, 
and  a  farmer  would  not  be  repaid  such  expense  in  the  autumn  of  the 
year  in  which  it  was  sown.  The  reversioner  came  into  possession  in  the 
winter  and  took  two  crops  of  the  same  clover  after  more  than  a  year  had 
elapsed  from  the  sowing.  Held,  that  the  tenant  was  not  entitled  to 
emblements  of  either  of  these  two  crops;  first,  because  emblements  can 
be  claimed  in  a  crop  of  that  species  only,  etc.  (as  above  stated)  ;  and 
secondly,  because,  even  if  the  plaintiff  were  entitled  to  one  crop  of  the 
vegetable  growing  at  the  time  of  the  cesser  of  his  interest,  this  had  been 
already  taken  by  him  at  the  time  of  cutting  the  barley.  The  case  of 
Kingsbury  v.  Collins,  4  Bing.,  202  (1827),  holding  teazles  to  be  emble- 
ments, was  in  Graves  v.  Weld  (supra),  commented  upon  and  explained; 
and  that  case  was  not  considered  an  authority  to  show  that  things  taking 
more  than  a  year  to  arrive  at  maturity  could  be  emblements. 

23  Graves  v.  Weld  (supra). 

338 


CHAP.   Vni,]  EMBLEMENTS,    ETC.  *252 

liberally  in  the  application  of  the  law  of  emblements  (prop- 
erly so  called),  to  the  different  relations  of  landlord  and  tenant, 
tenant  for  life  and  remainderman  or  reversioner,  etc.,  such  as 
have  been  sho^vn  to  exist  with  reference  to  fixtures.  The  reason 
seems  to  be  that  the  doctrine  of  emblements  in  these  different 
relations  is  founded  upon  substantially  the  same  grounds;  it 
being  from  the  nature  of  the  subject-matter  absurd  and  con- 
tradictory to  suppose  that  crops  which  are  in  all  the  relations 
"sown  in  the  ground  by  man's  industry  in  hope  not  to  con- 
tinue there  still,  but  to  be  separated  and  reaped  with  increase 
ere  long,"  are  intended  to  be  a  permanent  accession  to  the 
*realty.  Accordingly,  as  will  be  seen  hereafter,  emble-  [*252] 
ments  are  for  most  purposes  considered  as  chattels. 

There  are,  however,  some  rules  of  the  law  of  emblements,  to 
be  referred  to  presently,  which,  though  seemingly  well  settled, 
seem  anomalous  and  difficult  of  explanation.  Where  the  de- 
ceased was  seized  in  fee  simple  of  the  land,  his  personal  rep- 
resentatives are  entitled  to  emblements  as  against  the  heir,^-* 
and  the  same  rule  applies  to  tenant  in  tail.^^  It  is,  how- 
ever, well  settled  that,  if  a  man  seized  in  fee  sows  the  land, 
and  then  without  reservation  conveys  it  away  before  the  crop 
is  severed,  the  crop  passes  with  the  land  as  appertaining  to  it, 
and  does  not  belong  either  to  the  grantor,  or  to  his  executor  in 
case  he  dies  before  the  severancc^^^     And  the  same  rule  is  ap- 

24  Co.  Lit.,  55  b,  note  (2);  Com.  Dig.,  Biens,  G  2;  1  Wms.  Exrs.  (6th 
Lend,  ed.),  673.  Bac.  Abr.,  Executors,  H  3.  [See,  ante,  p.  *249.  Mit- 
cham  V.  Moore,  73  Ala.,  542,  547  (1883);  McGee  v.  Walker,  106  Mich., 
521,  522  (1895);  Kupp's  Est.,  2  Woodward,  228,  230  (Pa.,  1868);  see, 
also,  Walker  v.  State,  111  Ala.,  29,  31  (1895);  Marx  v.  Nelms,  95  Ala., 
304   (1891);   Kidwell  v.  Kidwcll,   84  Ind.,   224,   227    (1882). 

By  §§  2439-41  of  the  Alabama  Code  it  is  the  duty  of  an  administrator 
to  cultivate  and  market  the  crop.  Tayloe  v.  Bush,  75  Ala.,  432,  437 
(1883) ;  but  such  crop  will  go  to  the  heir  if  the  personal  representative 
does  not  exercise  his  option.  Wright  v.  Watson,  96  Ala.,  536,  539  (1892). 
This  matter  is  also  regulated  by  statute  in  Rhode  Island.  See  Draper  v. 
Barnes,  12  K.   I.,  156,  158   (1878).] 

25  Com.  Dig.,  Biens,  G  2;  Off.  Ex.   (14th  cd,),  145. 

20  Powell  V.  Rich,  41  111.,  466  (1866);  Tripp  v.  TTascoig,  20  Mich.,  254 
(1870);  Backcnstoss  v.  Stabler,  33  Ponn.  St.,  254  (1859);  Tcrhunc  v. 
Elberson,  3  N.  J.  Law  (2  Penning.),  .3d.  cd.,  p.  297;  2d.  ed.,  553;  Ist.  ed., 
p.  726  (1810);  Gibbons  v.  Dillingham,  10  Ark.,  9  (1849);  Bull  v.  Gris- 
wold,  19  111..  631   (1858);  Talbot  v.  TTill,  68  111.,  106  (1873);  Bludworth  v. 

339 


*252  THE   LAW   OF   FIXTURES.  [CHAP.   VUI. 

Hunter,  9  Rob.  (La.),  256  (1844);  Civil  Code,  La.,  Art.  456.  See,  also, 
Burusiilo  V.  Woifrhtman,  2  W.  &  S.,  268  (1841).  [Miller  v.  Cheney,  88 
liul.,  460,  470  (1882);  Blodgctt  v.  German  Sav.  Bank,  69  Ind.,  153,  156 
(1879);  Ellithorpe  v.  Keidosil,  71  Iowa,  315,  318  (1887);  Chapman  v. 
Veach,  32  Kan.,  167,  170  (1884);  Baird  v.  Brown,  28  La.  Ann.,  842,  843 
(1876);  Coman  v.  Thompson,  47  Mich.,  22  (1881);  Reed  v.  Swan,  133 
Mo.,  100,  106  (1895);  Steele  v.  Farber,  37  Mo.,  71,  79  (1865);  Coor  v. 
Smith,  101  N.  C,  261,  262  (1888)  ;  see,  also,  Graham  v.  Roark,  23  Ark., 
19,  23  (1861);  Abbott  v.  Abbott,  75  Pac,  1040  (Kan.,  1904);  Mueller 
V.  Olson,  90  Minn.,  416,  417  (1903)  ;  Mitchell  v.  Tsehida,  71  Minn.,  133, 
135   (1898);  Marshall  v.  Homer,  74  Pac,  368,  370   (Okla.,  1903).] 

[The  rule  is  the  same  upon  partition  of  land  owned  in  common,  the 
crops  planted  by  one  co-tenant,  growing  upon  each  portion  assigned  in 
severalty  to  the  co-tenants,  going  with  the  land  as  a  part  thereof.  Cal- 
houn V.  Curtis,  45  Mass.,  413,  415  (1842)  ;  see  Bird  v.  Bird,  15  Fla., 
424,  443  (1875)  ;  and  where  the  crops  have  been  planted  by  one  tenant 
in  common  in  exclusive  possession,  his  co-tenant,  after  filing  a  bill  for 
partition,  may  be  permitted  to  share  the  proceeds.  Moreland  v.  Strong, 
115   Mich.,  211,   217    (1897).] 

[Where  a  transfer  of  land  is  void  for  want  of  writing,  the  crop  there- 
on does  not  pass.    Jackson  v.  Evans,  44  Mich.,  510,  513  (1880).] 

[In  Voils  V.  Battin,  6  Kan.  App.,  742  (1897),  it  was  held  that  a  crop, 
previously  sold  on  execution,  did  not  pass  on  a  sale  of  the  land.] 

[Where  an  owner  of  land  mortgages  it,  and  afterwards  makes  a  chattel 
mortgage  on  the  crops,  the  mortgagee  of  the  land,  by  purchasing  the  land, 
merges  his  mortgage  so  that  the  chattel  mortgage  becomes  prior  to  the' 
claim  of  the  grantee  and  of  his  tenant.  Cameron  v.  Gibson,  17  Ont.,  233 
(1889).] 

[A  lessee,  on  taking  possession  under  his  lease,  is  entitled  to  the  crops 
growing  upon  the  leased  premises.  Edwards  v.  Perkins,  7  Oregon,  149, 
156   (1879);   Emery  v.  Fugina,  68  Wis.,  505,  507    (1887).] 

The  cases  of  Stambaugh  v.  Yates,  2  Rawle,  161  (1828)  ;  Smith  v. 
Johnston,  1  Penn.,  471  (1^30);  s.  c,  3  Penn.,  496,  so  far  as  they  decide 
that  growing  grain  does  not  pass  by  a  conveyance  of  the  fee,  where  not 
specially  reserved,  are  now  overruled.  See  Bank  of  Penn.  v.  Wise,  3 
Watts,  394,  406  (1834);  Wilkins  v.  Vashbinder,  7  Watts,  378  (1838); 
Cobel  V.  Cobel,  8  Penn.  St.,  346  (1848)  ;  Burnside  v.  Weightman,  9  Watts, 
46    (1839);   Bittenger  v.  Baker,  29  Penn.  St.,  68    (1857). 

As  to  whether  such  reservation  of  the  crops  may  be  made  by  parol  or 
not  there  is  a  conflict  among  the  authorities.  If  the  rule  in  the  text  be 
conceded  to  be  settled,  the  weight  of  authority  seems  to  be  that  such  a 
parol  reservation  is  void.  Gibbons  v.  Dillingham,  10  Ark.,  9  (1849)  ; 
Vanderkarr  v.  Thompson,  19  Mich.,  82  (1869)  ;  Austin  v.  Sawyer,  9  Cow. 
39  (1828);  Powell  v.  Rich,  41  111.,  466  (1866);  Brown  v.  Thurston,  56 
Me.,  126  (1868);  Mcllvaine  v.  Harris,  20  Mo.,  457  (1855);  Chapman  v. 
Long,  10  Ind.,  465  (1858).  See,  also,  Wintermute  v.  Light,  46  Barb., 
278   (1866);   Carpenter  v.  Jones,  63  111.,  517    (1872);   Smith  v.  Price,  39 

340 


CHAP.   VUI.]  EMBLEMENTS,   ETC.  *253 

*plicable  when  the  land  on  which  such  crop  is  growing  [*253] 
is  sold  and  conveyed  on  execution  against  its  owner.^  So,  the 
purchaser  of  mortgaged  premises  upon  a  foreclosure  and  sale 
thereof  is  entitled  to  the  growing  crops  or  emblements  thereon 

111.,  28  (1865);  Johnson  v.  TantUnger,  31  Iowa,  500,  502  (1871);  Con- 
ner V.  Coffin,  22  N.  H.,  538  (1851);  Eing  v.  Billings,  51  111.,  475  (1869). 
[Johnston  v.  Smith,  70  Ala.,  108,  120  (1881);  Gam  v.  Cordrey,  53  Atl., 
334,  335  (Del.,  1902);  Damery  v.  Ferguson,  48  III.  App.,  224,  228  (1898); 
Garanflo  v.  Cooley,  33  Kan.,  137,  139  (1885) ;  Chapman  v.  Veach,  32 
Kan.,  167,  170  (1884)  ;  Kammrath  v.  Kidd,  95  N.  W.,  213  (I\'linn.,  1903)  ; 
Bloom  V.  Welsh,  27  N.  J.  Law,  177  (1858).  A  growing  crop  is  a  part 
of  the  realty  as  between  the  mortgagor  and  the  mortgagee,  and  the  mort- 
gagor can  not  assert  the  rights  of  third  persons.  Williamson  v.  Eichard- 
son,  31  La.  Ann.,  686,  687  (1879).  Notice  by  the  sheriff  at  an  execution 
sale  of  land  can  not  affect  the  right  of  the  purchaser  as  to  crops  grow- 
ing thereon.  Frost  v.  Bender,  65  Ga.,  15,  19  (1880).  A  written  agree- 
ment reserving  a  growing  crop  to  the  grantor,  is  merged  into  a  subse- 
quent, unconditional  deed,  and  the  grantee  is  entitled  to  such  crop.  Turner 
V.  Cool,  23  Ind.,  56  (1864).  See,  also,  Clifton  v.  Jackson  Iron  Co.,  74 
Mich.,  183  (1889),  for  the  same  rule  as  to  trees.] 

See,  contra,  Flynt  v.  Conrad,  Phill.  Law,  190  (1867) ;  Heavilon  v. 
Heavilon,  29  Ind.,  509  (1868);  Baker  v.  Jordan,  3  Ohio  St.,  438  (1854); 
Youmans  v.  Caldwell,  4  Ohio  St.,  71  (1854);  Backenstoss  v.  Stahler,  33 
Penn.  St.,  251  (1859).  See,  also,  Harbold  v.  Kuster,  44  Penn.  St.,  394 
(1863)  ;  Lauchner  v.  Eex,  20  Penn.  St.,  464  (1853)  ;  Pea  v.  Pea,  35  Ind., 
387  (1871);  Jones  v.  Timmons,  21  Ohio  St.,  596  (1871),  where  a  distinc- 
tion is  taken  between  crops  and  trees.  See,  however,  Carpenter  v.  Ottley, 
2  Lans.,  451  (1870).  [A  parol  reservation  is  held  valid  in  Harvey  v. 
.Million,  67  Ind.,  90  (1879),  overruling  earlier  cases;  Kluse  v.  Sparks,  10 
Ind.  App.,  444,  446  (1894);  Hubbs  v.  Swabacker,  51  W.  Va.,  438  (1902); 
and  such  parol  reservation  is  valid  though  a  sale  of  a  growing  crop  is 
within  the  statute  of  frauds.  Kerr  v.  Hill,  27  W.  Va.,  576  (1886).  See, 
also,  Moffett  v.  Armstrong,  40  Iowa,  484  (1875);  Creager  v.  Creager,  87 
Ky.,  449,  453  (1888);  Weldon  v.  Lytic,  53  Mich.,  1  (1SS4);  Ranta  v. 
Merchant,  45  App.  Div.,  141  (N.  Y.,  1899).  A  lessor  can,  by  parol,  re- 
serve a  growing  crop.     Hisey  v.  Truutman,  84  Ind.,   115    (1882). J 

But  where  "A.  is  bound  in  an  obligation  that  B.  shall  enjoy  a  lease  of 
black  acre  immediately  after  his  death  [and],  tlir  I.umI  Ix'iiig  sown,  the 
executors  of  A.  take  the  corn,  it  was  lioldon  the  obligation  was  not  for- 
feited, for  that,  by  the  law,  the  corn  did  liclong  to  the  executors."  Laun- 
too's  Case,  4  Leon.,  1   (1578).     [See,  post,  p.  ♦258.] 

iBear  v.  Bitzer,  16  Penn.  St.,  175  (1851);  Pitts  v.  Tlendrix,  6  Goo.,  452 
(1849).  [Tliwcat  v.  Stamps,  67  Ala.,  96,  98  (1880);  see,  also,  King  v. 
Bosserman,  8  Pa.  Dist.,  344  (1899);  Loose  v.  Scharff,  fi  Pa.  Super.,  153 
(1897).     But  see  Kesler  v.  Cornelison,  98  N.  C,  383,  385   (1887).] 

[For  the  same  rule  as  to  fixtures,  see,  post,  p.   *27C).     Tlic   rule   stated 

341 


*253  THE  LAW  OF  FIXTURES.  [CIIAP.   VIII. 

in  the  text  applies  as  against  a  buyer  of  the  crops,  who  has  not  removed 
them,  although  the  grantee  had  notice.  Bloom  v.  Welsh,  27  N.  J.  Law, 
177  (1S5S);  and  as  against  a  cropper.  Adams  v.  McKesson,  53  Pa.  St., 
81    (ISGG);  also  a  lessee.     Sallade  v.  James,  6  Pa.  St.,  144,  145   (1847).] 

[One  whose  land  has  been  sold  on  execution  and  whose  right  must  ex- 
pire at  the  end  of  a  year  from  the  sale,  unless  he  redeems,  is  not  entitled 
to  emblements.  '  *  It  may  be  said  that  he  intended  to  redeem,  and  was 
prevented  by  unforeseen  and  uncontrollable  causes;  but  the  law  can  not 
enquire  into  the  good  faith  of  such  a  pretense.  The  party  in  such  situa- 
tion must  know,  or  at  least  make  his  own  estimate,  of  his  ability  to  re- 
deem, and  if  he  chooses  to  put  out  crops  which  he  may  not  reap  within 
the  year  given  him  to  redeem,  without  securing  by  agreement  with  the 
purchaser  of  the  land  the  rights  of  a  tenant  after  the  expiration  of  the 
year,  he  must  suffer  the  consequences."  Thomas  v.  Noel,  81  Ind,,  382. 
383    (1882).] 

[The  purchaser  at  an  execution  sale  who  takes  possession  of  the  land 
is  entitled  to  a  crop  afterwards  planted  by  the  defendant  with  the  knowl- 
edge and  consent  of  such  purchaser.    Smith  v.  Hague,  25  Kan.,  246  (1881).] 

[A  levy  upon  land  includes  a  crop  growing  thereon.  Frost  v.  Eender 
65  Ga.,  15,  19   (1880).] 

[Where  land  upon  which  crops  are  growing  is  seized,  and  such  crops 
are  gathered  by  the  seizing  creditor  through  the  sheriff,  and  stored,  and 
a  subsequent  seizure  by  the  same  creditor,  upon  a  second  installment  of  the 
same  debt,  is  made,  such  crops  remain  subject  to  the  second  seizure. 
Townsend  v.  Payne,  42  La.  Ann.,  909,  914.] 

[An  officer  selling  land  under  a  decree  has  no  authority  to  reserve 
growing  crops.    Johnston  v.  Smith,  70  Ala.,  108,  120  (1881).] 

[The  purchaser  of  land  at  an  execution  sale  has  no  right  to  the  crops 
growing  thereon  until  he  obtains  possession.  Potter  v.  Lambie,  142  Pa. 
St.,  535,   538    (1891).] 

[Where  the  purchaser  at  an  execution  sale  leaves  the  judgment-debtor 
in  possession  as  tenant  at  will,  such  tenant  is  entitled  to  the  crops  growing 
at  the  time  the  sheriff's  deed  is  given.  Martin  v.  Knapp,  57  Iowa,  336, 
341    (1881).] 

[Where  there  has  been  a  constructive  severance  by  the  purchaser's 
apparently  acquiescing  in  an  exemption  of  the  growing  crops  as  personal 
property  by  the  defendant,  and  an  appraisement  thereof  as  such,  the  pur- 
chaser of  the  land  is  not  entitled  to  them.  Hershey  v.  Metzger,  90  Pa. 
St.,   217    (1879).] 

[Where  a  judgment  is  a  lien  upon  land,  a  crop  grown  thereon  can  be 
sold,  when  matured,  under  the  fi.  fa.  issued  upon  the  judgment,  as  against 
junior  liens.  And  the  lien  attaches  to  the  crop  as  against  a  chattel 
mortgagee.  Clark  v.  Wheaton,  62  Ga.,  173,  174  (1878).  But  where  a 
lease  is  made  subsequent  to  a  judgment  against  the  lessor,  a  purchaser 
of  the  land  at  an  execution  sale  afterwards  made,  acquires  only  the  in- 
terest of  the  lessor  as  to  the  growing  crop.  Blitch  v.  Lee,  115  Ga.,  112 
(1902);   Dollar  v.  Roddenbcry,  97  Ga.,   148    (1895);   Heavilon  v.  Farmers 

342 


CHAP.   \^^.]  EMBLEMENTS,    ETC.  *253 

Bank,  81  Ind.,  249  (1881),  In  the  latter  case  it  is  said  that  the  tenant's 
right  grows  out  of  the  uncertainty  when,  if  ever,  a  sale  of  the  laud  will 
be  made,  it  not  having  been  ordered  nor  advertised  at  the  time  he  hires 
the  land,  and  where  the  tenancy  is  uncertain,  he  who  sows  shall  reap. 
See,  to  the  same  effect,  Johnson  v.  Cook,  96  Mo.  App.,  442  (1902).  In 
McKeeby  v.  Webster,  170  Pa.  St.,  624  (1895),  where  the  tenant  paid 
rent  in  full  at  the  time  of  making  the  lease,  a  purchaser  of  the  land  at 
a  subsequent  execution  sale  could  not  deprive  him  of  his  right  to  the 
crop.] 

[Where  one  having  a  sheriff's  deed  allows  the  tenant  to  remain  until 
the  latter  harvests  the  crop,  he  is  estopped  to  claim  the  grain,  Bowen  v. 
Roach,  78  Ind.,  361    (1881).] 

[That  lien  does  not  cover  tenant's  fixtures,  see,  post,  p.  *288.] 

[Where  delinquent  taxes  are  a  lien  upon  land,  they  are  a  lien  upon 
crops  growing  upon  the  land.  Blodgett  v.  German  Sav.  Bank,  69  Ind., 
153,  156  (1879).  But  the  holder  of  a  tax-deed,  not  in  possession,  is  not 
entitled  to  growing  crops,  but  has  a  right,  after  recovery  in  ejectment,  to 
damages  for  the  profits.    Brock  v.  Leighton,  11  111.  App.  361,  364  (1882).] 

[A  purchaser  of  land  takes  subject  to  an  agricultural  lien  on  crops, 
given  by  a  tenant,     Dail  v.  Freeman,  92  N.  C,  351    (1885),] 

Under  the  system  of  appraisement  of  land  for  judicial  sales  in  Ohio,  by 
which  the  land  is  appraised  and  not  sold  except  at  a  price  bearing  a 
fixed  proportion  to  the  appraised  value,  the  value  of  the  annual  crops  is 
not  included  in  the  estimate,  and  the  debtor's  rights  can  only  be  pro- 
tected by  regarding  such  crops  as  personalty  requiring  a  separate  levy ;  and 
hence  growing  crops  do  not  there  pass  to  the  purchaser  at  a  judicial  sale 
of  the  land.  Cassilly  v,  Rhodes,  12  Ohio,  88  (1843),  a  sale  under  a  de- 
cree of  foreclosure;  Houts  v.  Showalter,  10  Ohio  St.,  126  (1859),  holding 
the  same  rule  applicable  to  a  sale  by  a  sheriff  under  proceedings  in  parti- 
tion. The  rule  last  stated  is  founded  on  reasons  peculiar  to  the  policy  of 
this  State  as  to  judicial  sales  which  can  only  be  made  for  two-thirds  of 
the  appraised  value  in  which  the  crops  are  not  included;  and  the  rule 
itself  is  conceded  in  the  case  last  cited  to  be  opposed  to  the  current  of 
authority  elsewhere  where  real  estate  is  sold  without  appraisement  and 
for  whatever  it  will  bring.  [This  rule  applies  to  the  landlord's  share  of 
a  crop  put  in  by  a  tenant,  the  purchaser  at  a  judicial  sale  acquiring  no 
title  thereto,  this  being  an  exception  to  the  general  rule  that  a  purchaser 
is  entitled  to  rent  which  becomes  due  after  title  vests  in  him.  Albin  v. 
Riegel,  40  Ohio  St.,  .'i.'?9,  340  (1883).  Grape  crops,  requiring  annual 
cultivation,  arc  cmblcmcntH,  which  do  not  pass  to  the  purchaser  of  the  land 
at  judicial  sale,     Mason  v.  Lcnimon,  4  Ohio  Dec.,  322,  324  (1S95).] 

In  Walton  v.  .Jones,  65  N,  C,  170  (1871),  where  an  execution  was 
levied  upon  land  in  ISGl,  the  lien  of  which  was  continutil  l>y  successive 
writs  ef  venditioni  expands  until  the  fall  of  1867,  when  llic  land  was  sold 
by  the  sheriff,  it  was  held,  that  the  legal  presumption  that  the  crops  of 
1867  passed  with  the  land  was  fully  rebutted;  "for  they  were  not  in- 
cluded in  the  levy  of  1861  and  of  course  did  not  pass  by  the  sale."  This 
conclusion   seems   very   like   begging   tlio    question. 

343 


*253  THE  LAW  OF  FIXTURES.  [CIIAP.   VIII. 

at  the  time  of  the  sale  as  against  the  mortgagor  or  his  assignee 
in  bankruptcy.^     Also,  as  against  his  lessee  subsequent  to  the 

2  Aldrk'b  v.  Eeynolds,  1  Barb.  Ch.,  613  (1840)  ;  Lane  v.  King,  8  Wend., 
584  (1S3L');  Crews  v.  Pendleton,  1  Leigh,  297  (1829);  Gillett  v.  Balcom, 
6  Barb.,  370  (1849);  Bittenger  v.  Baker,  29  Peuu.  St.,  68  (1857).  [Ho 
Sun  V.  Hitchcock,  9  Hawaii,  616,  619  (1894);  Harmon  v.  Fisher,  9  III. 
App.,  22,  24  (1881);  Martin  v.  Knapp,  57  Iowa,  336,  344  (1881);  Mis- 
souri Val.  Ins.  Co.  v.  Kiehl,  25  Kan.,  390  (1881);  Porter  v.  Hubbard, 
134  Mass.,  233,  236  (1883)  ;  Dayton  v.  Dakin,  103  Mich.,  65,  73  (1894)  ; 
Scriven  v.  Moote,  36  Mich.,  64,  66  (1877)  ;  Hayden  v.  Burkemper,  101  Mo., 
644,  647  (1890),  aflf'g  40  Mo.  App.,  346  (1890);  Wallace  v.  Cherry, 
32  Mo.  App.,  436,  438  (1888) ;  Jones  v.  Adams,  37  Oregon,  473,  476 
(1900);  McDowall  v.  Phippen,  1  Ont.,  143,  145  (1881).  But  see  Mc- 
Allister V.  Lawler,  32  Mo.  App.,  91   (1888).] 

[The  rule  stated  in  the  text  also  applies  to  vendor's  liens.  Johnston  v. 
Smith,  70  Ala.,  108,  120  (1881);  Siefert  v.  Campbell,  24  Ky.  Law  R., 
1050    (1902).] 

[A  person  in  possession  of  land  under  a  bond  for  a  deed,  who  fails  to 
perform  his  contract,  is  not  entitled  to  crops  sown  after  commencement 
of  a  suit  to  foreclose  the  bond.    Sievers  v.  Brown,  34  Ore.,  454,  461  (1899).] 

[A  mortgagee,  purchasing  at  the  foreclosure  sale,  is  entitled  to  the 
growing  crops,  although,  by  a  previous  written  agreement  with  the  mort- 
gagor, he  has  bought  such  crops  with  the  understanding  that  he  is  to  re- 
duce debts  of  the  mortgagor  to  him.  Otherwise,  no  reservation  having 
been  made  at  the  sale,  there  would  be  no  equality  between  the  mortgagee, 
who  has  the  right  to  bid,  and  other  bidders.  Ledyard  v.  Phillips,  47 
Mich.,  305  (1882).] 

But  where  the  owner  of  the  land  executed  a  mortgage  thweon  which 
was  foreclosed  in  equity,  and  a  sale  had  thereunder,  and  pending  the  suit 
for  foreclosure,  the  mortgagor  demised  the  land  to  a  third  person,  who 
raised  a  crop  of  wheat  and  oats  thereon  which  he  harvested  and  placed 
in  shock  before  the  agent  of  the  purchaser  was  put  in  possession  of  the 
land,  and  after  he  had  harvested  the  crop  and  before  the  time  of  re- 
demption from  the  sale  had  expired  and  the  master's  deed  been  executed, 
an  agent  of  the  purchaser  under  the  foreclosure  was  put  in  possession 
under  a  w-rit  issued  for  the  purpose,  and  threshed  and  hauled  away  the 
grain,  it  was  held,  that  the  crop  so  grown  and  harvested  did  not  pass  to 
the  purchaser  but  belonged  to  the  tenant.  Johnson  v.  Camp,  51  111.,  219 
(1869).  The  report  of  this  case  does  not  state  whether  the  grain  was 
harvested  before  or  after  the  sale.  Walker,  J.,  in  delivering  the  opinion 
of  the  court,  observed  that  defendant  knew,  "that  lie  [the  tenant]  had 
leased  the  ground  from  the  owner,  and  that  he  [the  defendant]  himself 
had  no  title  to  the  premises  until  he  purchased  and  acquired  his  deed. 
He  knew  that  he  was  not  entitled  to  the  land  or  its  possession  until  after 
the  redemption  had  expired,  and  he  acquired  the  master's  deed;  and  he 
knew  that  he  could  only  acquire  possession  by  a  writ  which  the   decree 

344 


CHAP.   VIII.]  EMBLEMENTS,    ETC.  *254 

*giving  of  the  mortgage.^  So,  also,  as  against  one  who  [*254] 
had  prior  to  the  foreclosure  purchased  such  growing  crops  at  a 

directed  to  be  issued;  and  he  should  have  known  that  he  only  thus 
acquired  the  possession  of  the  land  and  fixtures,  but  no  right  to  personal 
property  on  the  land. ' '  [As  to  ice  cut  and  removed,  see  Gregory  v.  Eosen- 
krans,  72  Wis.,  220   (1888).] 

[A  court  may  order  a  sale  of  the  growing  crops  apart  from  the  land, 
and  can  set  aside  a  sale  of  such  crops.  Peckham  v.  Group,  3  Kan.  App., 
369   (1895).] 

[Where  the  purchaser  at  a  foreclosure  sale  leaves  the  mortgagor  in  pos- 
session awaiting  a  decision  of  the  supreme  court  on  an  appeal,  and  the 
mortgagor  sows  a  crop,  he  is  entitled  to  emblements.  Dobbins  v.  Lusch, 
53  Iowa,  304,  309    (1880).] 

[A  mortgagee  can  not  recover  crops  raised  by  the  mortgagor  which  are 
severed  before  entry  by  the  mortgagee.  Hiuton  v.  Walston,  115  N.  C, 
7,  8    (1894).] 

[In  Wisconsin  the  mortgagor  is  entitled  to  cut  mature  crops  after  a 
sale  of  the  land  at  foreclosure  sale  and  before  confirmation  of  such  sale. 
Allen  V.  Elderkin,  62  Wis.,  627  (1885).] 

[The  right  of  a  jiurchaser  at  a  foreclosure  sale  to  growing  crops  does 
not  begin  until  the  execution  of  the  sheriff's  deed  after  the  expiration  of 
the  time  for  redemption.  Everingham  v.  Braden,  58  Iowa,  133,  134 
(1882);  White  v.  Griggs,  54  Iowa,  650,  651    (1880).] 

[Where  a  mortgagee  enters  under  an  ineffectual  foreclosure,  and,  in 
good  faith,  sows  and  harvests  a  crop  with  the  knowledge  of  and  without  ob- 
jection from  the  mortgagor,  he  at  least  would  be  entitled  to  it  as  a  mort- 
gagee in  possession,  and  would  not  be  a  trespasser  though  accountable  for 
the  profits.     Holton  v.  Bowman,  32  Minn.,  191,  192   (1884).] 

[Upon  redemption  from  an  execution-sale,  the  purchaser  is  entitled  to 
emblements.     Gardner  v.  Lanford,  86  Ala.,  508   (1888).] 

[If  the  mortgagor  redeems  he  is  entitled  to  the  crops  growing  upon 
the  land  at  the  time  of  the  foreclosure  sale.  Cartwright  v.  Savage,  5 
Ore.,   397    (1875).] 

However,  the  mortgagor  cannot  prolong  his  possession  by  sowing  on 
his  own  account  crops  which  may  not  mature  till  after  the  confirmation 
of  the  sale  and  conveyance  of  the  legal  title.  Thus,  where  a  mortgagor 
after  the  sale  of  the  mortgaged  premises  by  the  sheriff  but  before  the 
confirmation  of  such  sale  by  the  court,  without  authority  or  consent  of 
the  purchaser  sows  wheat  on  the  premises,  such  crop  cannot  after  confirma- 
tion be  harvested  by  him.     Parker  v.  8torts,  15  Ohio  St.,  351   (1864). 

The  rule  on  the  subject  of  judicial  sales  of  land  in  Ohio  as  relating  to 
crops  thereon,  has  already  been  shown  to  be  peculiar.  See  ante,  p.  *253, 
note. 

1  Lane  v.  King,  8  Wend.,  584  (1832);  Jones  v.  Thomas,  H  Blackf.,  428 
(1847).  fStanbrouph  v.  Cook,  83  Iowa,  705  (1891);  Downard  v.  Groff, 
40  Iowa,  597,  598  (1875);  Missouri  Valley  To.  v.  Barwick,  50  Kan.,  57,  60 

345 


•Of; 


254  THE   LAW   OF   FIXTURES.  [CUAP,   VUI. 

(1892);  Goodwin  v.  Smith,  49  Kan.,  351,  355  (1892);  Kardin  v.  Baldwin, 
9  Kan.  App.,  51G,  518  (1900);  Skiltou  v.  Harrol,  5  Kan.  App.,  753  (1897); 
Shockey  v.  Johontz,  2  Kan.  App.,  483  (189(5)  ;  Kuggles  v.  First  Nat.  Bank, 
43  Mich.,  192,  197  (1880);  Fischer  v.  Johnson,  51  Mo.  App.,  157  (1892); 
Sahnon  v.  Fewell,  17  Mo.  App.,  118,  126  (1885);  Fowler  v.  Carr,  63  Mo. 
App.,  486,  491  (1895);  Watson  v.  Menteer,  59  Mo.  App.,  387,  390  (1894); 
Nichols  V.  Lappin,  79  S.  W.,  995  (Mo.  App.,  1904)  ;  Missouri  Trust  Co.  v. 
Cunningham.  SI  I\Io.  App.,  262  (1899);  Missouri  Trust  Co.  v.  Wachter,  81 
Mo.  App.,  263  (1899);  Vogt  v.  Cunningham,  50  Mo.  App.,  136,  138 
(1892);  Groff  v.  Levan,  16  Pa.  St.,  179,  182  (1851);  see,  also,  Hall  v. 
Durham,  117  Ind.,  429  (1888);  Calvin  v.  Shinier,  15  Atl.,  255,  256  (N.  J. 
Ch.,  1888).]  See,  however,  Johnson  v.  Camp,  51  111.,  219  (1869),  supra; 
Cassilly  v.  Ehodes,  12  Ohio  St.,  88  (1843)  ;  Bittenger  v.  Baker,  29  Penn. 
St.,  66  (1857),  and  cases  there  cited.  [Ellison  v.  Dolbey,  3  Pennewill,  45 
(Del.,  1900)  ;  Cassell  v.  Ashley,  92  N.  W.,  1035,  1036  (Neb.,  1902)  ;  Porche 
V.  Bodin,  28  La.  Ann.,  761,  763  (1876) ;  Brown  v.  Leath,  17  Tex.  Civ.  App., 
262,  264   (1897).] 

[A  sale  under  a  mortgage  conveys  to  the  purchaser  all  the  growing  crops 
of  the  tenant  with  notice,  after  condition  broken.  Reed  v.  Swan,  133  Mo., 
100,  106  (1895).  But  the  lessee  is  entitled  to  the  crops  gathered  before  he 
yields  possession.  Gray  v.  Worst,  129  Mo.,  122,  135  (1895).  However,  if 
possession  is  wrongfully  withheld  until  crops  are  gathered  the  purchaser's 
title  thereto  is  not  affected.  Sugden  v.  Beasley,  9  111.  App.,  71,  77  (  1881). 
A  statute  changing  the  rule  laid  down  in  the  text  does  not  apply  to  an 
existing  mortgage,  although  the  crop  was  not  in  existence  when  the  mort- 
gage was  made.     Walton  v.  Fudge,  63  Mo.  App.,  52,   57   (1895).] 

[The  rule  is  the  sarfle  in  the  case  of  a  vendor's  lien.  Yates  v.  Smith, 
11  111.  App.,  459,  461  (1882),  Likewise,  a  purchaser  of  land  under  an 
order  of  sale  for  partition  is  entitled  to  the  growing  crops  as  against  one 
claiming  to  be  a  tenant  who  was  a  party  to  the  suit,  but  gave  no  notice  of 
his  rights.     Hancock  v.  Caskey,  8  S.  C,  282,  285   (1876).] 

[A  licensee  is  not  entitled  to  crops  which  were  growing  at  the  time  of 
service  of  writ  of  assistance  although  severed  before  possession  obtained. 
See  Robinson  v.  Fee,  42  Up.  Can.  Q.  B.,  448   (1878).] 

[After  a  foreclosure  sale  has  been  made,  or  perhaps  advertised,  it  would 
seem  that,  as  against  the  purchaser  the  tenant  who  would  sow  must  do  it 
at  his  peril.     Heavilon  v.  Farmers  Bank,  81  Ind.,  249,  2.54   (1881).] 

[In  Reily  v.  Carter,  75  Miss.,  798  (1898),  it  is  said  that  growing  crops 
pass  to  the  purchaser  of  land  at  foreclosure  sale  from  the  date  of  the  con- 
firmation of  the  sale;  and  it  is  immaterial  that  tenants  in  possession  were 
not  parties  to  the  foreclosure  suit.  But  in  Wheat  v.  Brown,  3  Kan.  App., 
431,  4.34  (1896),  it  is  said  that  where  a  tenant  is  not  made  a  party  to 
foreclosure  proceedings,  he  is  entitled  to  immature  crops  as  against  the 
purchaser  of  the  land  at  foreclosure  sale.  See,  also,  St.  John  v.  Swain, 
14  N.  Y.  Supp.,  743,  744  (1891).  Where  a  tenant,  having  been  made  a 
party  defendant  to  a  foreclosure  suit,  is  permitted  by  the  purchaser  to 

346 


CHAP.  Vin.]  EMBLEMENTS,   ETC.  *254 

sale  on  execution  against  the  mortgagor,  the  crops  being  still 
growing  on  the  land  at  the  time  of  the  foreclosure  sale.^     Such 

retain  possession  until  the  crop  is  harvested,  the  title  to  the  crop  does  not 
pass  to  the  purchaser.     Monday  v.  O'Neil,  44  Neb.,  724,  728  (1895).] 

[Where  a  trust  deed  provides  that  after  a  sale  thereunder,  the  mort- 
gagor in  possession  -nill  hold  as  a  tenant  of  the  purchaser,  it  gives  the 
mortgagor  a  right  to  ungathered  crops  nearly  matured.  Willis  v.  Moore, 
59  Tex.,  628,  637  (1883).  A  deed  of  trust,  given  by  the  owner  of  land, 
contained  a  clause  providing  that  the  owner  should  be  permitted  to  occupy 
the  land  as  tenant  of  the  trustee,  until  a  sale  for  default.  The  owner 
leased  the  land,  and  the  lessee  remained  in  possession  after  sale  for  de- 
fault, and  harvested  crops  sown  by  him.  Held,  that  he  was  entitled  to  the 
crops  as  against  the  purchaser  at  the  trustee 's  sale,  his  right  being  anal- 
ogous to  the  right  of  an  innocent  under-lessee  to  emblements  upon  for- 
feiture of  the  lease  by  the  first  lessee.  Gray  v.  Worst,  129  Mo.,  122,  135 
(1895).] 

[As  a  mortgage  creates  no  estate  in  the  mortgagee,  but  confers  upon 
him  only  a  lien  upon  the  estate  of  the  mortgagor,  which  estate  can  be 
transferred  only  by  foreclosure  and  sale,  and  as  it  can  not  be  anticipated 
when  such  foreclosure  and  sale  will  be  accomplished,  and  the  right  of 
possession  under  the  statute  extends  one  year  beyond  the  sale,  the  tenancy 
is  uncertain,  and  the  general  rule  allowing  emblements  applies.  Heavilon 
V.  Farmers  Bank,  81  Ind.,  249,  253   (1881).] 

[After  a  foreclosure  sale,  and  prior  to  the  expiration  of  the  period  of 
redemption,  crops  planted  by  a  tenant  of  the  mortgagor  in  possession  be- 
long to  him,  although  harvested  after  the  period  for  redemption  has 
expired.     Aultman  Co.  v.  O 'Dowd,  73  Minn.,  58   (1898).] 

[Of  course  the  rule  stated  in  the  text  does  not  apply  where  the  mort- 
gagee has  assented  to  the  agreement  between  the  mortgagor  and  the  tenant. 
Congdcn   v.    Sanford,   Hill   &   Den.,    196,    197    (N.    Y.,   1843).] 

[In  Hecht  v.  Dettman,  56  Iowa,  679,  680  (1881),  it  is  held  that  a  pur- 
chaser at  a  foreclosure  sale  has  no  right  to  growing  crops  which  are  ma- 
tured, and  which  woul<l  have  been  severed  before  but  for  unfavorable 
weather.] 

So  a  tenant  occupying  land  under  an  heir  or  devisee  where  such  land  is 
incumbered  by  the  statutory  lien  of  the  ancestor's  debts  (all  the  real  estate 
of  which  the  ancestor  died  seized  descending  to  the  heir  or  passing  to  the 
devisee  chargeable  with  the  ancestor's  debts),  within  the  statutory  period 
during  whjch  such  debts  are  a  lien,  sows  crops  at  the  risk  of  losing  them  in 
case  of  a  sale  to  pay  such  debts,  the  case  being  analogous  to  that  of  a 
mortgage.     Jewett  v.  Keenholts,    16  Barb.,   193    (1853). 

2  Shepard  v.  Philbrick,  2  Den.,  174  (1846)  ;  Rherman  v.  Willett,  42  N.  Y., 
1.50  (1870).  Sec,  also,  Jewett  v.  Keenholts,  16  Barb.,  193,  106  (1853); 
Bittenger  v.  Baker,  29  Penn.  St.,  68  (1857);  Gillett  v.  Balcom,  6  Barb., 
370  (1849),  the  case  of  a  subsequent  purchaser  of  the  crops  from  tlio 
assignee  in  bankruptcy  of  the  mortgagor.     [Anderson  v.  Strauss,  98  111., 

347 


•254  THE  LAW  OF  FIXTURES.  [CHAP.   VIII. 

485,  490  (1881);  Eankin  v.  Kinsey,  7  111.  App.,  215,  219  (1880);  Batter- 
man  V.  Albright,  122  N.  Y.,  484   (1890). J 

In  Sherniau  v.  Willett,  the  sale  of  the  rye  was  at  an  administrator's  sale; 
bnt  in  other  respects  the  question  was  similar  to  that  in  Shepard  v.  Phil- 
brick.  In  Sherman  v.  Willett,  the  court  say:  "The  plaintifT  took  his  title 
to  the  rye  subject  to  the  contingency  that  it  might  be  wiped  out  by  a  fore- 
closure of  the  mortgage  given  by  the  intestate  upon  the  land  before  the 
crop  of  rye  was  sown." 

[As  between  a  mortgagee  in  possession  after  default  and  execution 
creditors  of  the  mortgagor,  growing  crops  belong  to  the  former.  Hamblet 
V.  Bliss,  55  Vt.,  535   (1883).] 

[Anyone  purchasing  growing  crops  from  a  mortgagor,  where  the  mort- 
gage is  recorded  and  a  foreclosure  decree  has  been  rendered,  takes  them 
subject  to  the  contingency  of  his  title  being  divested  by  a  sale  of  the  land 
before  the  crops  ripen.  Beckman  v.  Sikes,  35  Kan.,  120,  122  (1886).  See, 
also,  Wootton  v.  White,  90  Md.,  64   (1899).] 

[As  between  a  mortgagee  of  lands  to  whom,  after  default,  the  mortgagor 
has  surrendered  possession,  and  a  chattel  mortgagee  of  the  growing  crops 
whose  rights  have  arisen  since  the  giving  of  the  mortgage  upon  the  realty, 
such  crops  belong  to  the  mortgagee  of  the  land.  Thompson  v.  Union  Co., 
110  Ala.,  499  (1895).  That  the  rights  of  a  chattel  mortgagee  of  crops 
are  subordinate  to  those  of  a  purchaser  of  the  land  at  a  foreclosure  sale, 
see  Penryn  Fruit  Co.  v.  Sherman- Worrell  Fruit  Co.,  76  Pac,  484  (Cal., 
1904);  Brock  v.  Leighton,  11  111.  App.,  361,  364  (1882);  Moreland  v. 
Strong,  115  Mich.,  211,  217  (1897);  Bloomfield  v.  Hellyer,  22  Ont.  App., 
232  (1895).  Likewise  as  to  one  holding  a  lien  on  the  crop.  Adams  v. 
Moulton,  McGloin  (La.),  210,  212.] 

[A  mortgagee,  taking  peaceable  possession  of  the  land,  has  a  right  to  any 
crops  standing  thereon.  Bangor  Bank  v.  Wallace,  87  Me.,  28,  30  (1894).  Grow- 
ing crops  pass  under  a  deed  or  a  mortgage  of  the  land,  and  a  mortgagee 
can  enter  and  take  them.  Gilman  v.  Wills,  66  Me.,  273,  275  (1877).  But 
where  a  mortgagor,  before  the  mortgage  was  due,  yields  possession  of  his 
farm  to  the  mortgagee  authorizing  him  ' '  to  rent  same  *  *  *  and 
*  *  *  apply  net  income  upon  my  indebtedness,"  such  mortgagee  is  not 
technically  "in  possession,"  and  is  not  entitled  to  a  growing  crop  planted 
by  the  mortgagor  and  previously  sold  hy  him.  Sexton  v.  Breese,  135  N.  Y., 
387   (1892),  aflf'g  64  Supr.  Ct.   (57  Hun),  1    (1890).] 

[A  mortgagee  demanding  possession  is  entitled  to  crops  as  against  a 
receiver.  Baguall  v.  Villar  (1879),  12  Ch.  D.,  812,  81,3.  Where  growing 
crops  are  levied  upon  by  a  creditor  of  the  mortgagor,  before  a  receiver  is 
appointed  for  the  land  at  the  instance  of  a  mortgagee  of  the  land,  one 
■who  purchases  the  crops  at  the  execution  sale  after  the  appointment  of  the 
receiver,  can  hold  them  as  against  the  receiver.  Favorite  v.  Deardorff,  84 
Ind.,  55.5,  557  (1882).  Where  a  mortgagor  remaining  in  possession  after 
foreclosure  sale,  plants  a  crop,  a  purchaser  in  good  faith  of  such  crop  is 
entitled  to  it  as  against  a  receiver  subsequently  appointed  to  take  charge 
of  and  sell  the  crop  for  the  purpose  of  paying  a  deficiency  left  after  a  sale 
of  the  land.     Knox  v    Oswald,  21  111.  App.,  105   (1886).] 

348 


CHAP,   Vm.]  EilBLEMENTS,    ETC.  *255 

*crops,  if  unsevered,  will  pass,  though  over  ripe  and  no  [*255] 
longer  drawing  nourishment  from  the  ground,  the  term  "grow- 
ing crops"  usually  used  in  such  cases,  meaning  crops  still  an- 
nexed rather  than  ripe  or  unripe.^ 

[Stubble  cane  is  a  part  of  the  realty,  and  covered  by  a  mortgage  as 
against  third  persons  claiming  interest.  Penn  v.  Citizens'  Bank,  32  La. 
Ann.,  195,  199   (1880).] 

[White  V.  Pulley,  27  Fed.,  436  (U.  S.  C.  C,  Ala.,  1886),  holds  a  contrary 
rule  to  that  stated  in  the  text.  Annual  growing  crops  are  to  be  treated 
as  personal  estate  for  the  purpose  of  levy  and  sale  on  execution;  hence,  as 
between  the  grantee  of  land,  and  a  prior  purchaser  of  the  growing  crop 
thereon  at  a  constable 's  sale,  the  latter  is  entitled  to  the  crop.  Voils  v. 
Battin,  6  Kan.  App.,  742  (1897).  A  mortgage  in  Texas  is  but  security, 
and  the  title  to  the  property  remains  in  the  mortgagor;  hence,  if  the 
mortgagor  sells  a  growing  crop  prior  to  a  sale  of  the  land  under  a  deed 
in  trust,  the  buyer  of  the  crop  can  hold  it  as  against  the  purchaser  of  the 
land.  Willis  v.  Moore,  59  Tex.,  628  (1883)  ;  McKinney  v.  Williams,  45 
S.  W.,  335  (Tex.  Civ.  App.,  1898)  ;  Lombardi  v.  Shero,  14  Tex.  Civ.  App., 
594,  597  (1896).  One  who  buj's  crops  from  a  mortgagor  or  at  a  sheriff's 
sale  before  the  mortgagee  takes  possession  or  his  right  to  enter  has 
accrued,  acquires  title  thereto.  Favorite  v.  Deardorff,  84  Ind.,  555,  557 
(1882).  Under  a  levari  facias  a  sheriff  can  not  sell  the  growing  grain  upon 
mortgaged  premises  as  against  the  assignee  thereof.  Myers  v.  White,  1 
Kawle,  353,  355  (Pa.,  1829).  As  between  a  mortgagee  of  the  land  with 
the  "rents,  issues  and  profits  thereof,"  and  a  subsequent  chattel  mort- 
gagee of  the  crops,  it  is  proper  to  sell  the  land  separately  from  the  crops 
in  order  that  the  surplus,  if  any,  after  satisfying  the  former  mortgage, 
may  be  applied  to  the  extinguishment  of  the  latter.  Treat  v.  Dorman,  100 
Cal.,  623  (1893).  Nebraska  adheres  to  the  Ohio  rule;  and  a  purchaser  of 
land  at  a  foreclosure  sale  has  no  right  to  growing  crops  thereon,  they 
being  personalty,  and  a  prior  chattel  mortgagee  is  entitled  to  them.  Aid- 
rich  V.  Bank  of  Ohiowa,  64  Xeb.,  276  (1902).  Where  a  mortgagor  does 
not  release  his  homestead,  the  purchaser  upon  foreclosure  acquires  no  right 
to  growing  crops  thereon  as  against  the  holder  of  a  chattel  mortgage 
thereof  given  before  the  premises  are  surroiidcrod.  Brock  v.  I>ciglitoii,  11 
111.  App.,  361,  364  (1882).  A  chattel  mortgagee  of  crops  is  entitled  to 
them  if  severed  before  the  mortgagee  of  the  land  takes  possession  of  the 
premises.  Laing  v.  Ontario  Loan  Co.,  46  Up.  Can.  Q.  B.,  114  (1881). 
A  purchaser  of  land  at  a  foreclosiiro  sale  takes  the  growing  crop  thereon 
subject  to  a  privilege  for  supplies  furnished  to  cultivate  such  crop.  Weil  v. 
Kent,  52  La.  Ann.,  2139   (1900).] 

1  Tripp  V.  Hasceig,  20  Mich.,  254  (1870),  in  which  case  the  crop  in  ques- 
tion was  corn  standing  unharvested  on  the  premises  Dec.  13th,  the  date  of 
the  deed.  [Damery  v.  Ferguson,  48  111.  App.,  224,  229  (1892);  Sugden  v. 
Beasley,  9  111.  App.,  71,  77  (1881);  Firebaugh  v.  Divan,  207  111.,  287,  290 

34f) 


•255  THE   LAW   OF   FIXTURES.  [CHAP,   VTH. 

It  is  also  well  settled  that,  unless  otherwise  disposed  of  ex- 
pressly or  by  implication,  crops  growing  upon  land  at  the  time 
of  the  death  of  the  devisor,  being  a  tenant  in  fee,  go  with  the 
land  to  the  devisee  and  not  to  the  executor.^  And  the  rule  is 
so  strong  that  if  the  devise  be  for  life  with  remainder  over,  and 

(1904),  aff'g  111  111.  App.,  137  (1903);  Vogt  v.  Cunningham,  50  Mo 
App.,  136,  139  (1892);  McDowall  v.  Phippen,  1  Ont.,  143,  145  (1881);  see, 
also,  Sullins  v.  State,  53  Ala.,  474,  476  (1875)  ;  Allen  v.  Ashburn,  65  S,  W. 
45,  47  (Tex.  Civ.  App.,  1901).  In  determining  the  rights  of  an  adminis 
trator  the  courts  take  judicial  notice  that  at  certain  dates  crops  are  imma 
ture.  Loeb  v.  Eichardson,  74  Ala.,  311,  314  (1883).]  See,  however 
Powell  V.  Eich,  41  111.,  466,  469  (1866).  [Everingham  v,  Braden,  58  Iowa 
133,  134  (1882)  ;  Eiehards  v.  Knight,  78  Iowa,  69  (1889)  ;  First  Nat.  Bank 
of  Clay  Centre  v.  Beegle,  52  Kan.,  709,  711  (1894);  Porche  v.  Bodin,  28 
La.  Ann.,  761  (1876);  Meffert  v.  Dyer,  81  S.  W.,  643  (Mo.  App.,  1904). 
Grain  which  has  matured  and  ready  for  harvest,  does  not  pass  to  the  pur- 
chaser of  land  at  foreclosure  sale.  It  possesses  the  character  of  personal 
chattels,  and  is  not  to  be  regarded  as  part  of  the  realty.  The  course  of 
vegetation  has  ceased  and  the  soil  is  no  longer  necessary  for  its  existence. 
The  ground  performs  no  other  office  than  affording  a  resting-place  for  the 
grain,  the  same  as  a  warehouse.  Hecht  v.  Dettman,  56  Iowa,  679,  680 
(1881).  See,  also,  Foss  v.  Marr,  40  Neb.,  559  (1894),  where  the  crop  was 
not  considered  by  the  appraisers  in  valuing  the  farm  for  the  purposes  of 
the  sale.] 

[Where  a  statute  made  it  an  offense  to  carry  away  "corn  growing  on 
the  stalk,"  an  indictment  charging  the  defendant  with  carrying  away 
corn  attached  to  the  realty  is  not  sufficient,  as  the  provision  does  not  apply 
to  ripe  corn.     Johnson  v.  State,  68  Ind,,  43,  45   (1879).] 

2  Jones  v.  Jones,  2  Dev.  Eq.,  387  (1833);  Creel  v.  Kirkham,  47  111.,  344 
(1868)  ;  Bradner  v.  Faulkner,  34  N.  Y.,  347  (1866)  ;  Smith  v.  Barham,  2 
Dev.  Eq.,  423  (1833);  Taylor  v.  Bond,  Busb.  Eq.,  5,  24  (1852);  Budd  v. 
Hiler,  27  N.  J.  Law,  43  (1858);  Dennett  v.  Hopkinson,  63  Me.,  350 
(1873);  s.  C,  13  Am.  Law  Eeg.  (N.  S.),  359;  Cooper  v.  Woolfit,  2  H.  & 
N.,  122  (1857);  s.  c,  3  Jur.,  N.  S.,  870;  26  L.  J:,  Exch.,  310;  West  v. 
Moore,  8  East,  339  (1807),  per  Ld.  Ellenborough.  Spencer's  Case,  Winch., 
51  (1622);  Bull.  N.  P.,  34;  Com.  Dig.,  Biens,  G  2.  See,  also.  Gage  v. 
Eogers,  1  Strobh.  Eq.,  376  (1847).  [Hathorn  v.  Eaton,  70  Me.,  219,  221 
(1879);  Pratte  v.  Coffman,  27  Mo.,  424,  426  (1858);  Shofner  v.  Shofner, 
37  Tenn.,  94  (1857);  Dunford  v.  Jackson,  22  S.  E.,  853,  854  (Va.,  1895). 
For  similar  rule  as  to  fixtures,  see,  post,  p.  *312.] 

If  such  appear  to  be  the  intention  of  the  testator  as  shown  by  the  will, 
the  emblements  may  of  course  go  to  the  executor,  or  to  any  other  person 
designated  therein.  See  Taylor  v.  Bond  (supra) ;  Eudge  v.  Winnall,  12 
Beav.,  357   (1849). 

[Crops   upon   land   at   the  time  of   the  testator's  death  belong   to   the 

350 


CHAP.   \TU.]  EMBLEMENTS,    ETC.  *256 

the  first  taker  die  before  severance  of  the  crop  growing  at  the 
death  of  the  testator,  it  goes  over  with  the  land  to  the  remain- 
derman.3  The  distinction  between  heir  and  devisee,  as  to 
♦emblements,  though  well  settled,  is  anomalous  and  [*256] 
difficult  of  explanation.'* 

So,  a  widow  is  entitled  to  crops  growing  on  the  land  as- 
signed to  her  by  the  heir  for  dower.-"^     So,  as  it  seems,  where 

executors  under  2  Gavin  &  Hord  Statutes  of  Indiana,  494,  §  xxxiv.  Hum- 
phrey V.  Merritt,  51  Ind.,  197,  200    (1875).] 

[Where  a  statute  provides  that  growing  crops  shall  be  distributed  as 
personal  estate,  a  devisee  of  land  which  is  so  devised  as  to  include  a  crop 
growing  thereon,  takes  the  crop  as  a  specific  legacy.  Stall  v.  Wilbur,  77 
N.  Y.,  158  (1879)  ;  Ee  Clemens'  Est.,  9  N.  Y.  Supp.,  474,  475  (1890).] 

As  to  what  words  in  a  will  are  sufficient  to  pass  emblements,  see  West  v. 
Moore,  8  East,  339  (1S07);  Rudge  v.  Winnall  (sitijra)  ;  Kinsman  v.  Kins- 
man, 1  Root,  180  (1790)  ;  Cox  v.  Godsalve  (1691),  Holt's  MSS.,  157;  s.  c, 
cited  in  6  East,  604,  note;  1  Wms.  Exrs.  (6th  Lend,  ed.,  675);  Bull. 
N.  P.,  34. 

[A  legatee  of  "farming  stock"  takes  growing  crops.  Evans  v.  Wil- 
liamson (1880),  17  Ch.  D.,  696,  697,  disapproving  Vaisey  v.  Reynolds,  5 
Euss.,  12.] 

3  Per  Ruffin,  C.  J.,  in  Smith  v.  Barham,  2  Dcv.  Eq.,  423  (1833);  Spen- 
cer's Case,  Winch.,  51  (1622),  per  Harris,  J.;  Co.  Lit.,  55b,  note  (2). 
See,  also,  Grantham  v.  Hawley,  Hob.,  132  (1615).  The  reason  of  this  rule 
will  appear  further  on,  p.  *259. 

4  See  Co.  Lit.,  .55  b,  note   (2);   Moore  v.  West,  8  East,  339,  343   (1807). 
6  Clark  v.  Battorf,  1  N.  Y.  Sup 'me  Ct.  R.,  58  (1873)  ;  Dyer,  316;  2  Inst., 

81;  1  Greeul.  Cru.  Dig.,  tit.  6,  ch.  2,  §  29.  [See  Clark  v.  Banks,  6  Hous. 
(Del.),  584.] 

She  is  said  to  bo  in  de  optima  possessione  viri,  above  the  title  of  the 
executor.  2  Inst.,  81.  See,  also,  Ralston  v.  Ralston,  3  G.  Greene,  533 
(1852);  Budd  v.  Hilcr,  27  N.  J.  Law,  43  (1858);  Whaley  v.  Whaley,  51 
Mo.,  36  (1872),  where  it  is  said  that  she  is  not  entitled  to  the  crops  under 
her  quarantine,  and  held,  that  she  does  not  take  the  crops  under  the  Mis- 
souri statute  in  substitution  for  quarantine. 

[In  Vaughn  v.  Vaughn,  88  Tenn.,  742  (1890),  tho  court  followed  the 
rule  as  to  dower,  and  held  that  an  allotment  of  a  homestead  to  the  widow 
carried  growing  crops.] 

[Under  Sec.  28  of  the  descent  law,  1  R.  S.  (1876),  p.  413,  giving  the 
widow  and  minor  children  the  dwelling-house  and  fields  adjacent  for  one 
year,  the  right  to  crops  growing  upon  such  fields  at  flic  dc.'ith  of  the 
husband  belong  to  the  widow  and  children  as  against  the  administrator. 
Swain  v,  Bnrtlow,  62  Ind.,  546,  548   (1878).] 

[Where,  by  statute,  the  widow  is  entitled  to  a  plantation  without  rent 
until  her  dower  is  assigned,  and  her  dower  is  never  assigned,  she  is  entitled 

351 


•256  THE   LAW   OF   FIXTURES.  [CHAP.    VUI. 

the  deceased  was  seized  as  a  joint  tenant,  the  crops  sown  go 
with  the  huid  to  the  survivor,  and  no  moiety  thereof  passes  to 
the  personal  representatives  of  the  deceased.^ 

Besides  the  cases  of  tenants  in  fee  simple  and  in  fee  tail 
already  alluded  to,  the  privilege  of  removing  emblements  is 
extended  to  a  variety  of  other  cases ;  and  it  may  be  stated  as  a 
general  rule,  that  every  person  having  an  uncertain  interest 
or  estate  in  land,  and  whose  estate  is  determined  by  the  act  of 
God,  or  by  the  happening  of  some  uncertain  event  other  than 
his  own  act,  before  the  severance  of  the  crops  planted  or  sown 
by  him  thereon,  shall  have  the  right  to  remove  the  emble- 
ments; or,  if  the  estate  has  been  determined  by  reason  of  his 
death,  they  shall  pass  to  his  personal  representatives^  The 
interest  of  the  tenant  in  the  land  must  however,  be  uncertain 

to  the  crops.  Be  Merchant,  39  N.  J.  Eq.,  506,  508  (1885),  aflf'd  Merchant 
V.  Comback,  41  N.  J.  Eq.,  349   (1886).] 

[Where  a  statute  provides  that  "the  executor  or  administrator  may 
complete  and  gather  a  crop  commenced  by  the  decedent ; ' '  and  also  pro- 
vides that  the  widow  may  retain  possession  of  the  dwelling  house  and  the 
plantation  connected  therewith,  the  word  "may"  does  not  make  it  the 
absolute  duty  of  the  personal  representatives  to  complete  and  gather  the 
crop;  and  if  the  widow,  in  undisturbed  possession  of  the  plantation,  gathers 
the  crop,  she  is  entitled  to  it.     Blair  v.  Murphree,  81  Ala.,  454   (1886).] 

0  Dyer,  316  a,  pi.  2 ;  8  L.  Ass.,  pi.  21 ;  per  Popham,  J.,  in  James  v.  Port- 
man,  Owen,  102  (1593);  Rowney's  Case,  2  Vern.,  323  (1694);  s.  c,  Eq. 
Oa.  Abr.,  69,  pi.  11;  Com.  Dig.  Biens,  9,  2,  and  eases  cited;  Co.  Lit.,  52b. 
See,  also,  Haslett  v.  Glenn,  7  Harr.  &  John.,  17  (1825).  [See  Pritchard  v. 
Walker,  22  111.  App.,  286,  290  (1886).] 

But  where  one  joint  tenant  agrees  that  his  co-tenant  shall  occupy  all  the 
land  alone  and  sow  it  with  his  own  corn,  and  he  sows  and  dies  before  sever- 
ance, his  executors  shall  have  the  crop.     James  v.  Portman  (supra). 

^  See  Com.  Dig.  Biens,  G  2,  and  cases  cited.  [Adams  v.  Kauwa,  6 
Hawaii,  280,  281   (1881).] 

[Where  a  receiver  is  appointed  for  a  tract  of  land  pending  the  settle- 
ment of  conflicting  claims  thereto,  a  party  in  possession  who  had  planted 
crops  prior  to  the  decision  of  his  claim  thereto  and  before  the  application 
for  a  receiver,  should  be  allowed  a  reasonable  time  to  collect  his  crop,  the 
situation  being  analogous  to  that  of  a  tenant  whose  term  is  uncertain. 
Chappell  V.  Boyd,  56  Ga.,  578,  582    (1876).] 

[Where  two  persons  claim,  in  good  faith,  to  be  tenants  of  the  same 
land,  and  the  one  in  possession  plants  a  crop  before  the  other  institutes  a 
forcible  detainer  suit,  which  is,  on  appeal,.  (leci<Jed  against  the  tenant  in 

352 


CH^VP.   Vm.]  EMBLEMENTS,   ETC.  *257 

as  to  its  duration;  and  where  it  is  certain,  there  exists  no  right 
to  emblements.^ 

*Every  demise  between  landlord  and  tenant  in  respect  [*257] 
to  matters  in  which  the  contract  is  silent  may,  however,  fairly 
be  open  to  explanation  by  the  general  usage  and  custom  of  the 
country  or  district  where  the  land  lies;^  and  a  custom  that  a 
tenant  whether  by  parol  or  by  deed  shall  have  the  way  going 
crop  after  the  expiration  of  his  term  is  good,  if  such  custom 
is  not  repugnant  to  the  lease  under  which  he  holds,i*'  and  the 

possession,  the  latter  is  entitled  to  the  mature  ungathered  crop.  McKean 
V.  Smoyer,  37  Neb.,  694   (1893).] 

[But  a  tenant  at  sufferance  is  not  entitled  to  emblements.  Miller  v. 
Cheney,  88  Ind.,  466,  470   (1882).] 

8  Co.  Lit.,  55  a;  Litt.,  §  68;  Davies  v.  Connop,  1  Price,  53  (1814)  ;  Clarke 
V.  Kannie,  16  Lans.,  210  (1871);  Harris  v.  Carson,  7  Leigh,  632  (1836); 
Mason  v.  Moyers,  2  Rob.  (Va.),  606  (1844);  Kelley  v.  Todd,  1  W.  Va., 
197  (1866)  ;  Whitmarsh  v.  Cutting,  10  John.,  360  (1813)  ;  Bain  v.  Clark, 
10  John.,  424  (1813),  where  it  was  also  held,  that  the  fact  that  the  lessor 
agreed  to  renew  the  lease  at  the  end  of  the  term  (one  year),  provided  he 
did  not  want  the  farm  for  his  own  use,  did  not  alter  the  case,  as  the 
period  of  the  lease  was  fixed  and  the  tenant  had  no  interest  beyond  that 
period.  See,  also,  Caldccott  v.  Smythies,  7  C.  &  P.,  808  (1837).  [Thomas 
V.  Noel,  81  Ind.,  382,  383  (1882)  ;  Wheeler  v.  Kirkendall,  67  Iowa,  612 
(1885);  Dircks  v.  Brant,  56  Md.,  500,  502  (1881);  Sanders  v.  Ellington, 
77  N.  C,  255,  258  (1877);  Sharp  v.  Kinsman,  18  S.  C,  108,  114  (1882); 
see,  also,  Smith  v.  Sprague,  119  Mich.,  148  (1899)  ;  Reeder  v.  Sayre,  70 
N.  Y.,  180  (1877).  Nor  can  a  sub-lessee  acquire  any  greater  right.  Gos- 
sett  V.  Drydale,  48  Mo.  App.,  430,  433  (1892).  But  see  Meffert  v.  Dyer,  81 
S.  W.,  643   (Mo.  App.,  1904).] 

[Where  one  having  a  pre-emption  right  to  land  of  the  United  States, 
sows  crops  which  are  immature  when  his  right  expires,  such  crops  belong 
to  a  subsequent  purchaser  of  the  land.  Rasor  v.  Quails,  4  Blackf.,  286 
(Ind.,  1837).] 

[The  crop  growing  upon  land  at  the  termination  of  the  p.-irticular  estate 
[until  twenty-one]  is  the  property  of  the  remainderman.  Miller  v.  Cheney, 
88  Ind.,  466,  470   (1882).] 

oVan  Ness  v.  Pacard,  2  Pet.,  137  (1829).  [See  Clark  v.  Banks,  6  Hous. 
(Del.),  584.] 

1"  See  Wigglosworth  v.  Dallison,  Doug.,  201  (1779);  Ilutton  v.  Warren, 
1  M.  &  W.,  466  (1836);  s.  c,  Tyr.  &  Gr.,  6J6;  GrilTiths  v.  Pulcston,  13  M. 
&  W.,  358  (1844);  Dorsey  v.  Eagle,  7  Gill  &  J.,  331  (1835);  Foster  v. 
Robinson,  6  Ohio  St.,  90  (1856);  Templeman  v.  P.iddlo,  1  Harring.,  522 
(1835),  hnhlinr/,  that  in  Dolaware  the  way  going  tenant  is  by  goncral  cus- 
tom entitled  to  the  wheat  crop,  though  it  is  otherwise  as  to  the  oat  crop. 

23  353 


••: 


258  THE   LAW    OF   FIXTL'UES.  [CIIAP.    VUI. 

proof  of  the  eiistoin  lies  with  tlie  tenant.^ ^  In  general,  how- 
[*258]  •over,  the  rule  is  as  above  stated.  Thus,  emblements 
growing  on  the  land  at  the  death  of  the  tenant  for  life  go  to  his 

[Ellison  V.  Dolbey,  3  Pennewill,  45,  54  (Del.,  1900);  Harris  v.  Gregg,  17 
App.  Div.,  L'lO,  211  (N.  Y.,  1897) ;  see,  also,  Clark  v.  Banks,  6  Hous. 
(Del.),  584.] 

The  custom  stated  in  the  text  is  said  to  be  a  part  of  the  common  law  of 
Pennsylvania  and  New  Jersey,  where  a  tenant  for  a  term  certain  is  entitled 
to  his  way  going  crop  unless  there  is  an  exception  in  the  lease.  Van 
Dorens  v.  Everitt,  2  South.,  460  (1819);  Iddings  v.  Nagle,  2  W.  &  S.,  22 
(1841);  Biggs  v.  Brown,  2  S.  &  E.,  14  (1815);  Demi  v.  Bossier,  1  Penn., 
224  (1829)  ;  Clark  v.  Harvey,  54  Penn.  St.,  142  (1867)  ;  Comfort  v.  Duncan, 
1  Miles,  229  (1836);  Stultz  v.  Dickey,  5  Binn.,  285  (1812);  Craig  v.  Dale, 
1  W.  &  S.,  509  (1841);  Forsythe  v.  Price,  8  Watts,  282  (1839);  Diffe- 
dorfer  v.  Jones  (1782),  cited  in  5  Binn.,  289,  and  2  Binn.,  487.  [Shaw  v. 
Bowman,  91  Pa.  St.,  414,  418  (1879) ;  see,  also,  McKay  v.  Pearson,  6  Pa. 
Super.,  529,  534  (1898);  Whorley  v.  Karper,  20  Pa.  Super.,  347,  349 
(1902).]  But  this  custom  in  Pennsylvania  is  confined  grain  sowed  in 
autumn  before  the  expiration  of  the  lease,  to  be  reaped  in  the  summer 
after  it  determines.  Demi  v.  Bossier  (supra).  See,  also,  Howell  v. 
Schenk,  24  N.  J.  Law,  89  (1853);  Hunter  v.  Jones,  3  Brewst.,  370   (1866). 

However,  in  Harris  v.  Carson,  7  Leigh,  632  (1836),  evidence  of  a  local 
custom  for  the  outgoing  tenant  of  land  leased  for  a  fixed  and  determinate 
period  to  have  the  way  going  crop,  was  held  inadmissible,  it  being  in  dero- 
gation of  the  common  law  and  not  immemorial.  See,  also,  Mason  v.  Mey- 
ers, 2  Kob.   (Va.),  606  (1844);  Kelley  v.  Todd,  1  W.  Va.,  197   (1866). 

As  to  the  requisites  of  a  valid  custom,  see  notes  to  Wigglesworth  v. 
Dallison,  1  Smith's  Lead.  Cas.,  *675,  et  seq. 

See,  also,  Hughes  v.  Gordon,  1  Bligh,  312  (1819),  where  Lord  Redesdale 
in  referring  to  Wigglesworth  v.  Dallison,  said:  "The  court  held  that  a 
general  custom  applicable  to  lands  gave  a  construction  to  the  deed.  The 
real  state  of  the  case  is  that  where  custom  warrants  a  way  going  crop, 
unless  the  tenant  has  the  way  going  crop,  he  has  not  in  effect  the  land  for 
21  years."     See,  also,  Iddings  v.  Nagle    (supra). 

iiCaldecott  v.  Smythies,  7  C.  &  P.,  808  (1837).  [See  Dircks  v.  Brant, 
56  Md.,  500,  503   (1881).] 

["Whatever  is  matter  of  general  custom,  as  the  tenant's  right  to  sow 
an  away-going  crop,  to  have  possession  of  the  part  of  the  premises  sown 
for  the  purpose  of  manuring,  protecting  and  saving  the  same,  and  to 
exclude  others  from  it,  and  his  duty  to  cultivate  and  manage  the  farm 
rented  by  him  in  a  good  and  husbandlike  manner,  need  not  be  proved  to 
the  jury,  but  may  be  taken  notice  of  as  if  proved,  because  it  is  part  of 
the  contract  proved,  being  affixed  by  law."  Clark  v.  Banks,  6  Hous. 
(Del.),  584.] 

354 


CHAP.   VUI.J  EMBLEMENTS,   ETC.  *258 

executors  or  administrators  as  his  goods  and  chattels,^^  j^  jjjjg 
manner  a  tenant  i^ur  autre  vie  on  the  termination  of  his  estate 
by  the  death  of  the  cestui  que  vie  is  entitled  to  his  emble- 
ments.^ ^  So,  if  a  man  be  seized  of  land  in  the  right  of  his  wife, 
and  sows  the  ground  and  then  dies,  his  executors  shall  have 
the  crop ;  and  if  his  wife  die  before  him  he  shall  have  the 
crop.i"*  So,  where  the  husband  of  a  tenant  for  life  only,  is  in 
possession  and  tills  and  plants  the  land,  and  the  wife  dies  be- 
fore severance.^ ^  So,  where  a  tenant  for  years,  si  tamdiu  vixerit, 
sows  and  dies  before  severance,  his  personal  representatives 
shall  have  the  crop  on  account  of  the  uncertainty  of  the  deter- 
mination of  his  estate.^  ^  So,  where  a  tenant  for  life  makes  a 
lease  for  years  and  dies  before  the  expiration  of  the  term,  the 
under-tenant  is  entitled  to  emblements.^  ^ 

12  Com.  Dig.  Biens,  G  2;  Thornton  v.  Bureh,  20  Geo.,  791  (1856);  Mc- 
Laurin  v.  McCall,  3  Strobh.,  21  (1848)  ;  Perry  v.  Terrel,  1  Dev.  &  Bat.  Eq., 
441  (1836).  [Corle  v.  Monkhouse,  47  N.  J.  Eq.,  73,  75  (1890);  Poindexter 
V.  Blackburn,  36  N.  C,  286,  289  (1840)  ;  Brooks  v.  Brooks,  12  S.  C,  422, 
454   (1879).] 

[Xor  is  the  rule  changed  because  the  land  is  exempt  as  a  homestead. 
Dickey  v.  Wilkins,  17  So.,  374   (Miss.,   1895).] 

[The  life-tenant  is  the  owner  of  a  crop  planted  during  his  life,  and  may 
dispose  of  the  same  as  against  the  remainderman.  Shaffer  v.  Stevens,  143 
Ind.,  295,  297   (1895).] 

[This  matter  is  regulated  by  statute  in  South  Carolina.  See  Newton  v. 
Odom,  45  S.  E.,  10.5,  107  (S.  C,  1903).] 

13  Dyer,  316  a,  pi.  2;  Weems  v.  Bryan,  21  Ala.,  302  (1852);  Kelly  v. 
Webber,  11  Ir.  Com.  Law,  57  (1860).  But  not  to  crops  sown  after  the 
termination  of  the  estate,  Kelly  v.  Webber.     [See,  post,  p.  *262.] 

n  Dyer,  316  a,  pi.  2;  Co.  Lit.,  55  b. 

But  it  is  said  that  if  the  land  was  sown  before  the  marriage,  the  wife 
shall  have  the  corn.  1  Rolic  Abr.,  727,  pi.  17.  See,  also,  Haslett  v.  Glenn, 
7  Ilarr.  &  John.,  17  (1825),  and  the  authorities  cited  supra  in  note  (^-). 

10  Spencer  v.  Lewis,  1  Houst.,  223  (1856);  Co.  Lit.,  55  b.  [King  v. 
Whittle,  73  Ga.,  482,  483    (1884).] 

10  1  Roll.  Abr.,  Emblements,  A,  pi.  12,  p.  727. 

"Co.  Lit.,  .55b;  Bevans  v.  Briscoe,  4  Har.  &  John.,  139  (1816).  [Dor- 
sett  V.  Gray,  98  Ind.,  273,  275  (1884)  ;  see,  also.  King  v.  Foscue,  91  N.  C, 
116,  118    (1884);   Noble  v.  Tyler,  61    Ohio  St.,  432,  438    (1899).] 

[And  it  makes  no  difference  that  the  under-tenant  knows  that  the  life- 
tenant  is  dying,  and  sows  the  crop  the  day  before  his  death.  To  hold 
otherwise,  where  the  health  of  the  tenant  for  life  was  failing,  would  sub- 
vert an  importnnt  object  of  the  rule — the  encouragement  of  husbandry — 
and   open   a   fruitful   source  of  iinsermly   litigation,   as   the   tenant   would 

355 


♦259  THE   LAW   OF   FIXTURES,  [CHAP.   VIII. 

Before  the  making:  of  the  Statute  of  Merton,  20  H.  3,  ch.  2 
{anno,  1235),  it  was  a  question  Avhether  the  personal  represen- 
tatives of  a  tenant  in  dower  shoukl  have  the  growing  crops 
sown  by  her,  or  ^vllether  they  should  go  to  him  in  reversion  ;is 
but  since  that  statute  her  personal  representatives  are  entitled 
to  emblements,  the  same  as  those  of  any  otlier  tenant  for  life.^*^ 
If  a  dowress  sows  the  land,  and  then  takes  husband,  who  dies 
before  severance,  the  dowress  shall  have  the  crop,  and  not  the 
[*259]  *personal  representatives  of  the  husband.  But  if  the 
husband  of  a  dowress  sows  the  land,  and  dies  before  severance, 
then  his  personal  representatives  shall  have  the  crop.^o 

The  personal  representatives  of  a  tenant  by  the  courtesy  are 
entitled  to  emblements  like  those  of  any  other  tenant  for  life.^i 

As  has  been  already  stated,  one  ground  of  the  rule  that  the 
personal  representatives  of  a  tenant  for  life  shall  have  the  em- 
blements, is  to  compensate  him  for  the  labor  and  expense  of  the 
tilling,  manuring  and  sowing  the  land,  performed  and  incurred 
by  his  testator  or  intestate;  and  there  are  cases  where  this  rea- 
son of  the  rule  failing,  the  rule  itself  is  not  applicable.  Thus, 
if  A.  seized  of  land  sows  it  with  corn  and  then  conveys  it  away 
to  B.  for  life,  remainder  to  C.  for  life,  and  then  B.  dies  before 
severance,  C.  shall  have  the  crop  and  not  the  personal  repre- 
sentative of  B.,  though  his  estate  was  uncertain,  for  the  reason 

naturally  hesitate  to  put  in  crops  which  might  be  successfully  claimed  by 
his  successor.  Nor  is  the  right  to  emblements  affected  by  the  fact  that 
such  sowing  is  hurriedly  and  imperfectly  done,  as  that  would  be  wholly 
the  loss  of  the  sower;  though  the  fact  of  a  hurried  and  imperfect  mode  of 
sowing  might  have  been  of  pertinence  to  the  question  if  raised,  whether 
the  tenant  was  in  reality  sowing  or  only  pretending  to  do  so.  Bradley  v. 
Bailey,  56  Conn.,  374  (1888).] 

18  See  2  Inst.,  80,  81;  Bract.,  Lib.  2,  fol.  96. 

10  Com.  Dig.  Biens,  G  2;  1  Wms.  Exrs.  (6th  Lond.  ed.),  677.  See,  also, 
Talbot  V.  Hill,  68  111.,  106   (1873). 

[The  doctrine  of  emblements  does  not  apply  to  crops  growing  upon  land 
at  the  death  of  a  widow  to  whom,  by  will,  one-third  part  of  all  the  grain 
raised  upon  certain  land  had  been  given  during  her  life,  to  be  delivered 
as  soon  as  harvested.     Miller  v.  Wohlford,  119  Ind.,  305   (1889).] 

2oBro.  Abr.,  tit.  Emblts.,  pi.  26;  1  Wms.  Exrs.   (6th  Lond.  ed.),  678. 

As  to  emblements  of  an  estate  settled  in  jointure,  see  Fisher  v.  Forbes 
(1734),  9  Vin.  Abr.,  tit.  Emblts.,  p.  373,  pi.  82. 

21 1  Eoper  Husb.  and  Wife,  *35,  1  Wms.  Exrs.  (6th  Lond.  ed.),  679. 

356 


CHAP.   Vni.]  EMBLEMENTS,   ETC.  *260 

of  industry  and  charge  in  B.  has  failed.--  And  in  such  case,  if 
both  B.  and  C.  die  before  severance,  the  crop  shall  not  go  to 
the  personal  representatives  of  either  of  them,  but  shall  re- 
vert to  A.23 

The  right  to  emblements,  however,  does  not  obtain  till  the 
seed  is  sown,  the  common  law  having  drawn  a  distinction  be- 
tween the  right  to  emblements  and  the  cost  of  the  preparation 
of  the  ground  for  the  reception  of  the  seed.  Thus,  where  a 
tenant  at  will  is  ousted  after  ploughing  and  manuring  the  land, 
or  the  term  of  the  lessee  for  years  of  a  tenant  for  life  is  deter- 
mined by  the  death  of  the  tenant  for  life,  after  the  ground  is 
prepared,  but  before  the  seed  is  actually  sown,  he  Y,^holly  loses 
his  costs  and  labor,  though  had  he  planted,  he  would  have  been 
entitled  to  emblements.^-* 

*The  personal  representatives  of  the  incumbent  of  an  [*260] 
ecclesiastical  benefice  would  probably  at  common  law  also  be 
entitled  to  the  emblements  of  the  glebe  lands;  for  the  interest 
of  the  deceased  incumbent  in  the  land  was  uncertain  and  deter- 
mined by  the  act  of  God.-^  However  that  may  be,  the  right 
was  fully  established  by  the  statute  28  Hen.  8,  e.  11,  §  6,  which 
enacted,  that  in  case  any  incumbent  happened  to  die,  and  be- 
fore his  death  had  caused  any  of  his  glebe  lands  to  be  manured 
and  sown  at  his  proper  costs  and  charges  with  any  corn  or 
grain,  then  in  that  case  such  incumbent  might  make  and  de- 
clare his-  testament  of  all  the  profits  of  the  corn  growing  upon 
the  said  glebe  lands  so  manured  and  sown. 

The  estate  of  a  tenant  at  will,  also,  being  uncertain,  if  it  is 

22  Grantham  v.  Hawley,  Hob.,  132  (1615);  Cro.  Eliz.,  61,  464;  Smith  v. 
Barham,  2  Dev.  Eq.,  423  (1833),  per  Euffin,  C.  J.;  Spencer's  Case,  Winch., 
51  (1622),  per  Harris,  J.;  Co.  Lit.,  55b,  note  (2).  [Sec  Gardner  v.  Perry, 
39  Can.  Law  J.,  670   (Ont.,  1903).] 

23Gilb.   Ev.,  215;   Hob.,   132,  in  margin. 

2*  Bro.  Abr.,  tit.  Emblements,  7;  tit.  Tenant  per  Copie  de  Court  Eoll,  pi. 
7;  Price  v.  Pickett,  21  Ala.,  741  (1852);  Thompson  v.  Thompson,  6  Munf., 
518  (1820)  ;  Stewart  v.  Doughty,  9  John.,  112  (1812).  [Carman  v.  Mosicr, 
105  Iowa,  367,  369  (1898);  Collins  v.  Crowuover,  57  S.  W.,  357  (Tenn. 
Ch.  App.,  1900).] 

25  See  1  Wms.  Exrs.  (6th  Lend,  ed.),  676;  2  Bl.  Com.,  123,  145. 

But  a  parson  who  resigns  his  living  is  jiot  entitled  to  emblpmonts.  Biil- 
wer  V.  Bulwcr,  2  B.  &  Aid.,  470  (1819);  Dcbow  v.  Colfax,  10  N.  J.  Law, 
128  (1828).     See,  also,  Bctham  v.  Gregg,  10  Bing.,  352   (1833). 

357 


•260  THE  LAW   OF   FIXTURES.  [CHAP.   VIU. 

detenuinod  either  by  his  death  or  the  act  of  his  landlord,  he  in 
the  one  case,  and  his  executors  or  administrators  in  the  other, 
shall  reap  what  he  has  so\vn.2«  ^  tenant  nnder  the  court  for  a 
term  of  years  pending  a  cause,  is  in  the  nature  of  a  tenant  at 
will,  and  is  entitled  to  emblements.^'^  So,  where  a  lease  is  de- 
tenuinod by  the  landlord  while  a  crop  is  in  the  ground,  under  a 
provision  in  the  lease  giving  him  the  right  so  to  do  upon  giv- 
ing six  months  notice,  the  tenant  is  entitled  to  erablements.^s 
But  where  the  estate  is  determined  by  the  act  of  the  tenant, 
or  by  a  forfeiture  caused  by  his  act  or  default,  he  is  not  entitled 
to  emblements.2»     So  where  the  estate  of  the  husband  in  the 

acStomfil  V.  Hicks,  Holt,  414  (1669);  Eaton  v.  Southby,  Willes,  131,  136 
(1739);  Eeilly  v.  Kinglaud,  39  Iowa,  106  (1874);  Simpkins  v.  Rogers,  15 
HI.,  397  (1854);  Davis  v.  Brocklebank,  9  N.  H.,  73  (1837);  Litt.,  §  68. 
See,  also,  Harrison  v.  Chomeley,  Gary,  72  (1561).  [Eeilly  v.  Ringland,  44 
Iowa,  422,  424  (1876);  Dobbins  v.  Lusch,  53  Iowa,  304,  309  (1880); 
Towne  v.  Bowers,  81  Mo.,  491  (1884)  ;  Willis  v.  Moore,  59  Tex.,  628,  637 
(1883);  see,  also,  Monday  v.  O'Neil,  44  Neb.,  724,  727  (1895);  Eeynolds 
V.  Eeynolds,  55  Supr.  Ct.   (48  Hun),  142,  148   (N.  Y.,  1888).] 

27  0'Connell  v.  O'Callaghan,  3  Ir.  Eq.,  199    (1841). 

28  Stewart  v.  Doughty,  9  John.,  108    (1812). 

[Where  the  lessor,  by  failing  to  perform  his  contract  (in  this  case  fail- 
ing to  advance  money  to  take  off  the  crop),  causes  the  lessee  to  leave,  the 
latter  does  not  lose  his  right  to  the  crop.  Young  v.  Gay,  41  La.  Ann.,  758 
(1889).] 

[Where  a  guardian  makes  a  lease  extending  beyond  his  ward 's  minority, 
the  lessee  is  bound  for  the  full  time,  and  it  is  optional  with  the  ward 
whether  he  will  ratify  it.  If  the  ward  disaffirms  as  to  the  excess,  the 
lessee  is  entitled  to  emblements.  Nawahi  v.  Hakalau  Plantation  Co.,  14 
Hawaii,  460,  461   (1902).] 

29  Davis  v.  Eyton,  7  Bing.,  154  (1830)  ;  s.  C,  4  M.  &  P.,  820.  In  this 
case  the  lease  contained  a  condition  that  if  the  lessee  incurred  any  debt 
upon  which  he  should  be  sued  to  judgment  and  execution,  the  lessor  might 
enter  as  of  his  former  estate;  and  the  lessor  re-entering  after  judgment 
and  execution,  held,  that  the  lessee  was  not  entitled  to  emblements,  the 
execution  being  the  immediate  and  necessary  consequence  of  his  own  act. 
This  case  was  approved  and  followed  in  Hunter  v.  Jones,  3  Brewst.,  370 
(1866). 

So  in  Gland's  Case  (or  Oland  v.  Burdwick),  5  Co.,  116a  (1602);  s.  C, 
Mo.,  394;  Cro.  Eliz.,  460;  Goldsb.,  189,  it  was  held,  that  if  a  feme  copy- 
holder, durante  viduatate  sua,  according  to  the  custom  of  the  manor,  sows 
the  land  and  before  severance  takes  baron,  the  lord  of  the  manor  shall  have 
the  crop.  See,  also,  Hawkins  v.  Skeggs,  10  Humph.,  31  (1848) ;  Com.  Dig., 
Biens,  G  2;  2  Inst.,  Bl.  In  the  report  of  this  case  in  5  Co.,  it  is  also  said: 
"So  if  a  woman  seized  of  land  durante  viduatate  sua,  makes  a  lease  for 

358 


CHAP,   vm.]  EMBLEMENTS,    ETC.  *260 

years,  and  the  lessee  sows  the  land,  and  afterwards  the  woman  who  made 
the  lease  takes  husband,  the  lessee  shall  not  have  the  emblements;  for 
although  his  estate  is  determined  by  the  act  of  a  stranger,  yet  he  shall  not 
be  (as  to  the  first  lessor)  in  a  better  condition  than  his  lessor  was." 

But  in  1  Kolle  's  Abr.,  Emblements,  p.  727,  pi.  10,  the  rule  is  stated  to  be 
that  in  such  case  the  lessee  shall  have  the  emblements,  for  her  act  shall  not 
prejudice  a  third  person.  The  law  is  also  so  laid  down  by  Blackstone,  2 
Com.,  12-4;  and  the  latter  seems  the  preferable  rule.  See,  also,  the  report 
of  the  ease  in  Cro.  Eliz.,  460;  Bulwer  v.  Bulwer,  2  B.  &  Aid.,  470  (1819), 
per  Abbott,  C.  J.;  Debow  v.  Colfax,  10  N.  J.  Law,  128  (1828).  But  the 
under  lessee  himself  must  ha%e  sown  the  crop,  in  order  to  be  entitled  to  it. 
Debow  V.  Colfax   (supra).     [See,  ante,  p.  *259.] 

[A  purchaser  of  growing  crops  in  good  faith  before  forfeiture,  or  a 
sub-lessee,  is  entitled  to  them  as  against  the  landlord.  Miller  v.  Havens, 
51  Mich.,  482  (1883);  Gray  v.  Worst,  129  Mo.,  122,  135  (1895).  See, 
also,  Carney  v.  Mosher,  97  Mich.,  554  (1893).  As  between  a  purchaser  of 
growing  crops  at  an  execution  sale,  and  the  landlord  afterwards  recovering 
possession  for  non-payment  of  rent,  the  crops  belong  to  the  purchaser. 
Eussell  V.  Moore  (1880),  8  L.  R.,  Ire.,  318.] 

[Where  a  lessee  violates  a  provision  in  his  lease  against  subletting,  the 
lessor  can  not,  by  making  a  lease  to  another,  but  without  taking  any  steps 
to  terminate  the  first  lease,  deprive  the  sub-lessee  of  a  crop  harvested  by 
him.     Winkler  v.  Gibson,  2  Kan.  App.,  621   (1895).] 

[Upon  tenant's  failure  to  pay  rent  and  his  surrender  of  the  premises  to 
his  landlord,  the  latter  can  hold  the  crop  as  against  a  chattel  mortgagee 
thereof.     Gregg  v.  Boyd,  76  Supr.  Ct.   (69  Hun),  588   (N.  Y.,  1893).] 

A  tenant  may  also  lose  the  right  to  emblements  by  an  abandonment  of 
the  possession  of  the  land  where  they  are  growing.  Carpenter  v.  Jones,  63 
111.,  517  (1872);  Chandler  v.  Thurston,  10  Pick.,  205,  210  (1830).  [Silva 
V.  Barr,  141  Cal.,  599  (1904);  Kiplinger  v.  Green,  61  Mich.,  340,  347 
(1886);  see,  also,  Smith  v.  Sprague,  119  Mich.,  148,  149   (1899).] 

[If  a  tenant  abandons  or  surrenders  the  premises,  growing  crops  there- 
on pass  to  the  landlord  as  incident  to  his  restoration  to  the  possession  and 
to  the  termination  of  the  tenancy.  No  right  or  interest  remains  in  the 
tenant  although  the  landlord  may  agree  at  the  time  of  surrender  to  apply 
the  proceeds  of  the  crop  upon  the  tenant 's  debts.  Shahan  v.  Herzberg,  73 
Ala.,  59,  63  (1882).  And  such  crops  can  not  be  levied  upon  as  the  prop- 
erty of  the  tenant.     Wheat  v.  Watson,  57  Ala.,  581    (1877).] 

[When  lessees  abandon  the  leasehold  and  crop,  the  lessor  has  a  right 
to  resume  possession  and  harvest  the  crop,  and  apply  same  toward  unpaid 
rent  and  the  expense  of  harvesting.  Charles  v.  Davis,  59  Cal.,  479,  480 
(1881).  The  rule  is  the  same  as  against  a  mortgagee  of  the  crop.  Fry  v. 
Ford,  38  Ark.,  246,  255   (1881).] 

[Where  a  tenant,  by  public  vendue,  sells  growing  wheat,  no  rent  being 
due  at  the  time,  and  afterwards  surrenders  possession  to  his  landlord, 
the  purchaser  is  entitled  to  the  same;  otherwise  it  would  offer  opportunity 
for  collusion  between   landlord  and  tenant.     Nye  v.   Patterson,   35   Mich., 

359 


•261  THE  LAW  OF  FIXTURES.  [CHAP.  VIII. 

[*2611  *wife's  lands  is  determined  by  a  decree  of  divorce  for 
his  misconduct,  and  the  wife  restored  to  all  her  rights  in  her 
lauds,  the  husband  has  no  right  to  emblements.^ 

A  tenant  has  no  right  to  emblements  or  the  way-going  crop 
as  against  one  claiming  by  title  paramount  to  that  of  his  land- 
lord.2     So  after  regress  made  by  a  disseisor,  the  disseisee  shall 

413,  414  (1877).  And  a  surrender  can  not  affect  a  purchaser  where  the 
landlord  has  been  notified  of  the  sale  prior  to  such  surrender.  Shaw  v. 
Bowman,  91  Pa.  St.,  414,  417   (1879).] 

[The  tenant  has  a  right  to  sell  his  growing  crops,  although  he  has 
abandoned  the  land,. where  it  does  not  appear  that  there  was  any  right  of 
forfeiture  by  the  landlord.     Dayton  v.  Vandoozer,  39  Mich.,  749    (1878).] 

See,  also,  Talbot  v.  Hill,  68  111.,  106  (1873),  where  the  right  of  a  dowress 
to  emblements  sown  by  her  was  held  to  be  lost  hj  her  consenting  lo  a  sale 
of  the  premises  'disencumbered  of  dower,  by  a  commissioner,  and  the  award 
of  one-seventh  of  the  proceeds  of  the  sale  in  lieu  of  dower,  her  estate  being 
considered  as  terminated  by  her  own  act. 

[See,  further,  upon  the  tenant's  losing  his  right  to  emblements  by  a 
termination  of  his  estate  caused  by  his  default,  Schmidt  v.  Williams,  72 
Iowa,  317  (1887) ;  Samson  v.  Eose,  65  N.  Y.,  411  (1875).] 

1  Jenney  v.  Gray,  5  Ohio  St.,  45   (1855). 

But  in  Gland's  Case,  5  Co.,  116b  (1602);  1  Rolle  Abr.,  Emblts.,  726,  pi. 
7,  it  is  laid  down  that  if  a  lease  is  made  to  baron  and  feme  during  cover- 
ture, and  the  baron  sows  a  crop  and  afterwards  they  are  divorced  causa 
praecontractus,  the  baron  shall  have  the  emblements,  because  the  sentence 
is  the  act  of  the  law. 

[Where  land  is  allowed  to  the  wife  as  alimony,  she  is  entitled  to  a 
growing  crop  thereon,  planted  by  the  husband  after  the  divorce  proceed- 
ings are  commenced.     Herron  v.  Herron,  47  Ohio  St.,  544   (1890).] 

2  Howell  V.  Schenck,  24  N.  J.  Law,  89  (1853).  [Yates  v.  Smith,  11  111. 
App.,  459,  461   (1882);  Rowell  v.  Klein,  44  Ind.,  290,  295   (1873).] 

E.  g.,  as  in  the  case  of  a  lease  by  a  mortgagor  subsequent  to  the  execu- 
tion of  the  mortgage,  the  tenant  in  such  case  not  being  entitled  to  emble- 
ments as  against  the  mortgagee.  See  Howell  v.  Schenck  {swgra^  ;  and  the 
cases  cited  ante,  p.  *254,  note  (i). 

[Where  a  tenant  is  not  made  a  party  to  the  suit  his  right  to  crops  is  not 
affected.     Hooper  v.  Payne,  94  Ala.,  223   (1891).] 

[Crops  planted  by  the  lessee  in  possession  before  the  commencement  of 
the  action,  are  not  recovered  by  the  plaintiff  in  ejectment.  Collier  v.  Cun- 
ningham, 2  Ind.  App.,  254,  262  (1891).] 

[A  mortgagee  of  a  growing  crop  has  no  right  thereto  as  against  the 
successful  plaintiff  in  ejectment;  though  it  is  otherwise  as  to  any  portion 
of  the  crop  which  has  been  made  a  chattel  by  severance  before  the  plaintiff 
is  put  in  possession.     Huerstal  v.  Muir,  64  Cal.,  450,  453  (1884).] 

[A  tenant  of  one  who  has  a  contract  for  the  purchase  of  land,  owns  the 

360 


CHAP.   Vm.]  EMBLEMENTS,   ETC.  *262 

•have  the  corn,  though  sowed  by  the  disseisor.^  And  if  [*262] 
the  lessee  of  a  tenant  for  life  be  disseised,  and  the  lessee  of  the 
disseisor  sow  the  land,  and  then  the  tenant  for  life  dies,  and 
he  in  remainder  enters,  yet  he  shall  not  have  the  emblements, 
but  the  lessee  of  the  tenant  for  life.^  As  between  the  successful 
plaintiff  in  an  ejectment  and  the  evicted  defendant,  growing 
crops  are  a  part  of  the  realty,  and  are  included  in  the  re- 
covery ;  ^  and  if  an  evicted  defendant  in  ejectment  enters  and 

hay  and  apples  gathered  by  him  while  his  possession  is  allowed  to  con- 
tinue, as  against  the  party  holding  the  legal  title  to  the  land.  His  rights 
are  similar  to  those  of  a  mortgagor  in  possession  or  of  a  tenant  at  will. 
Look  V.  Norton,  94  Me.,  547  (1901).  And  such  a  tenant  is  entitled  to 
emblements  although  the  crop  is  sown  a  considerable  period  after  a  cause 
of  forfeiture  existed  against  his  landlord.  Sornberger  v.  Berggren,  20 
Neb.,  399   (1886).] 

3  Dyer,  31b,  pi.  219.     See  ante,  chap.  2,  p.  *64   [and,  post,  p.  *442]. 

[If  the  person  who  planted  the  crop,  carries  it  away  after  yielding  pos- 
session, he  is  criminally  liable  under  117157,  Gen.  Stat,  of  1889.  State  v. 
Salisberry,  49  Kan.,  160   (1892).] 

But  where  one  enters  and  ousts  the  owner  of  land,  and,  continuing  in 
the  possession  and  occupancy  thereof,  cuts  and  removes  the  crops  sown  by 
the  owner,  the  owner  cannot  maintain  replevin  for  such  crops  so  removed. 
His  remedy  is  by  trespass  quare  clausum  fregit  for  mesne  profits  after 
recovering  possession  in  ejectment  or  by  re-entry.  De  Mott  v.  Hagerman, 
8  Cow.,  220  (1828).  [See,  post,  p.  *420;  also,  post,  p.  *433.  Martin  v. 
Thompson,  120  U.  S.,  376  (1886)  ;  Kathbone  v.  Boyd,  30  Kan.,  485,  491 
(1883);  see,  also,  Caldwell  v.  Custard,  7  Kan.,  303  (1871);  Lindsay  v. 
Winona  &  St.  Peter  R.  R.  Co.,  29  Minn.,  411,  413  (1882);  Adams  v.  Leip, 
71  Mo.,  597,  598  (1880)  ;  Jenkins  v.  McCoy,  50  Mo.,  348  (1872)  ;  Hinton 
V.  Walston,  115  N.  C,  7,  9  (1894);  Wakefield  v.  Dyer,  76  Pac,  151 
(Okla.,  1904);  Phillips  v.  Keysaw,  7  Okla.,  674,  685  (1899).  But  see 
Rowoll   v.   Klein,  44   Ind.,   290,  296    (1873).] 

*  Knevett  (or  Knivct)  v.  Pool  (or  Poole),  Cro.  Eliz.,  463  (1596);  s.  C, 
5  Co.,  85  a;   Goldsb.,  143. 

•B  Altes  V.  Hinckler,  36  111.,  275  (1864);  Strode  v.  Swim,  1  A.  K.  Marsh., 
366  (1818);  Doe  v.  Witherick,  3  Bing.,  11  (1825);  s.  c,  10  :\Ioore,  267; 
Hodgson  V.  Gascoignc,  5  B.  &  Aid.,  88  (1821)  ;  Brothers  v.  Hurdle,  10  Ired. 
Law,  490  (1849)  ;  McLean  v.  Bovee,  24  Wis.,  295  (1869)  ;  King  v.  Fowler, 
14  Pick.,  238  (1833);  Rowell  v.  Klein,  44  Ind.,  290  (1873);  s.  C,  15  Am. 
R.,  235.  See,  also,  Crofty  v.  Collins,  13  111.,  567  (1852).  [See,  post,  p. 
•441.  Carlisle  v.  Killebrew,  89  Ala.,  329,  332  (1889);  McGinnis  v.  Fcr- 
nandes,  135  111.,  69,  73  (1890),  aff'g  32  111.  App.,  424,  425  (1889);  Huston 
V.  Skaggs,  7  Ky.  Law  R.,  592  (Super.,  1886);  Davis  v.  Callahan,  66  Mo. 
App.,  168,  173  (1806);  Kirtley  v.  Dykes,  10  Okla.,  16,  23  (1900);  see, 
also,   Mitchell  v.  Tschida,   71   Minn.,   133,   135   (1898);   and  Blocmendal  v. 

361 


*2G2  TUE  LAW  OF  fixtlk:^3.  [cuap.  vm. 

carries  away  crops  sown  ponding  the  suit,  the  phiintiir  may 
maintain  trover  for  their  value.*^  But  a  tenant  pur  autre  vie, 
holding  over  after  the  determination  of  his  estate  by  the  death 
of  the  cestui  que  vie,  does  not  tliereby  forfeit  his  right  to 
the  crop  sown  during  the  subsistence  of  his  tenancy,  though 

Albrecht,  79  jNIinn.,  304,  305  (1900),  as  to  tho  rule  in  Minnesota  under  the 

statute.] 

[Where  a  landlord,  without  the  consent  of  his  tenant,  and  before  the 
tenancy  is  terminated,  lets  the  field  to  another  who,  over  the  objection  of 
the  prior  tenant,  sows  wheat,  and  by  threats  of  violence  prevents  the  prior 
tenant  from  harvesting  it,  the  prior  tenant  being  entitled  to  possession  of 
the  field  at  harvest  time,  the  subsequent  tenant  has  no  right  to  the  wheat. 
Hubbard  v.  Berry,  10  Ind.  App.,  594   (1894).] 

[The  rule  stated  in  the  text  applies  even  though  the  defendant  in  actual 
possession  pending  litigation  has  made  a  contract  with  the  plaintiff  to 
pay  rent  to  the  true  owner,  if  such  defense  is  not  pleaded  in  the  ejectment 
suit,   and  the  plaintiff  recovers   no   rent.     Craig   v.   Watson,   68   Ga.,    114 

(1881).] 

So,  where  plaintiffs  brought  suit  against  several  defendants  to  set  aside 
as  fraudulent  a  conveyance  of  lands  by  one  of  said  defendants  to  the  others, 
to  compel  a  conveyance  to  plaintiffs,  to  be  put  in  possession  and  to  pro- 
cure a  receiver  of  the  growing  crops  thereon,  the  plaintiffs  claiming  to  have 
succeeded  before  suit  brought  to  the  title  of  the  fraudulent  grantor  under 
a  judgment  against  him  subsequent  to  said  fraudulent  conveyance,  and  a 
judicial  sale  and  sheriff's  deed  thereunder,  it  was  held,  that  the  growing 
grain  was  a  part  of  the  land,  and  that  plaintiffs  were  entitled  thereto,  if 
entitled  to  recover  the  land.  Corcoran  v.  Doll,  35  Cal.,  476  (1868).  In 
this  case  the  principal  parties  defendant  being  alleged  to  be  insolvent  and 
the  transaction  on  the  part  of  the  defendants  to  be  a  scheme  to  defraud 
the  plaintiff,  an  order  pendente  lite  for  an  injunction  and  a  receiver  to 
take  possession  of,  harvest,  and  preserve  the  grain  crop  was  held  to  have 
been  properly  made, 

[While  a  fraudulent  conveyance  of  land  would  pass  growing  crops  as 
between  the  parties,  it  will  not  prevent  creditors  of  the  grantor  from 
levying  upon  the  crops.     Pierce  v.  Hill,  35  Mich.,  194,  200   (1876).] 

[And  see  Erickson  v.  Paterson,  47  Minn.,  525  (1891),  where  a  fraud- 
ulent conveyance  of  a  homestead  did  not  defeat  a  subsequent  levy  upon 
tho  growing  crops.] 

cAltes  V,  Hinckler  (supra).  See,  also,  the  cases  cited  in  note  next 
above,     [See  McGinnis  v,  Fernandes,  32  111.  App.,  424  (1890).] 

[Replevin  may  also  be  maintained,  cither  against  the  defendant  or  a 
member  of  his  family.     Oyster  v.  Oyster,  32  Mo.  App.,  270  (1888).] 

[Where  the  plaintiff  in  ejectment  recovers,  he  is  entitled  to  the  crops, 
growing  or  cut  and  shocked,  which  were  planted  after  the  action  was  com- 
menced.    McCaslin  v.  State,  99  Ind.,  428,  442   (1884).] 

862 


CHAP.    VIII.]  EMBLEMENTS,    ETC.  *263 

♦evicted  by  ejectment  founded  upon  the  determination  [*263] 
of  his  interest;  the  tenant's  rights  in  respect  of  such  crop,  are 
not  affected  by  the  proceedings  in  ejectment,  the  landlord's 
recovering  in  ejectment  entitling  him  to  the  crop  only  in  cases 
where  his  title  is  antecedent  to  the  sowing  of  the  crop.  But 
the  tenant  is  not  entitled  to  harvest  a  crop  sown  by  him  after 
the  determination  of  his  estate  and  demand  of  possession,  such 
crop  passing  by  virtue  of  the  recovery  in  the  ejectment.'^ 

When  there  exists  a  right  to  emblements,  the  party  entitled 
to  the  right  has  by  law  "free  entry,  egresse  and  regresse"  so 
much  as  is  necessary  in  order  to  cut  and  carry  them  away; 
"for  when  the  law  doth  give  anything  to  me,  it  giveth  im- 
pliedly whatsoever  is  necessary  for  the  taking  and  enjoying  of 
the  same. ' '  ^  But  this  right  of  entry,  egress  and  regress,  should 
be  exercised  within  a  reasonable  time.^ 

A  tenant  who  is  entitled  to  emblements  having  an  exclusive 
interest  therein,  may,  though  not  in  possession  of  the  land, 
maintain  trespass  quare  clausum  fregit  against  the  landlord 
for  the  taking  of  or  injury  to  his  emblements.^*^ 

7  Kelly  V.  Webber,  11  Ir.  Com.  Law,  57  (1860).  See,  also,  9  Vin.  Abr., 
Emblts.,  p.  368,  pi.  27,  34;  Bro.  Abr.,  Emblts.,  pi.  25,  citing  30  E.  1,  and 
Fitzh.,  Villenage,  pi.  45;  Bro.  Abr.,  Emblts.,  pi.  16,  citing  46  Ass.,  2.  See, 
also,  Dame  v.  Dame,  38  N.  H.,  429  (1859).  [See,  ante,  p.  *258.  Samson 
V.  Rose,  65  N.  Y.,  411  (1875)  ;  see,  also.  Baker  v.  Mclnturff,  49  Mo.  App., 
505,  506   (1892).] 

sLitt.,  §  68;  Co.  Lit.,  55  a,  56  a;  Stewart  v.  Doughty,  9  John.,  108 
(1812);  Lewis  v.  McNatt,  65  N.  C,  63  (1871);  Humphries  v.  Humphries, 
3  Ircd.,  362  (1843);  Reilly  v.  Ringland,  39  Iowa,  106  (1874);  Bevans  v. 
Briscoe,  4  Har.  &  John.,  139  (1816);  Eaton  v.  Southby,  Willes,  131,  136 
(1739).  [Dobbins  v.  Lusch,  53  Iowa,  304,  309  (1880);  Towne  v.  Bowers, 
81  Mo.,  491,  498  (1884);  Sexton  v.  Breese,  135  N.  Y.,  387,  392  (1892); 
Bce,  also,  Clark  v.  Banks,  6  ITous.  (Del.),  584;  Be  Hussey,  2  Haskell,  244, 
245  (U.  S.  Dist.  Ct.,  Me.,  1878)  ;  McKay  v.  Pearson,  6  Pa,  Super.,  529, 
534  (1898).  And  a  buyer  from  the  tenant  has  also  the  right.  Shaw  v. 
Bowman,  91  Pa.  St.,  414,  418   (1879).] 

0  Lewis  V.  McXatt,  65  N.  C,  63  (1871).  This  was  a  lease  of  turpentine 
trees,  and  the  lime  within  which  the  way-gning  crop  in  that  case  should  bo 
removed  was  stated  to  be  before  the  sap  begins  to  flow  in  the  subsocjuciit 
spring,  for  then  tho  new  tiiriiciitiric  iiiitiglcs  with  the  old  "scrape"  which 
cannot  then  be  removed  without  interfering  with  the  rights  of  the  owner  of 
the  trees. 

10  Stewart  v.  Doughty,  9  John.,  108  (1812);  Forsythe  v.  Price,  8  Watts, 

363 


*204  THE  L.VW  OP  FIXTURES.  [CHAP.   VIII. 

As  has  been  already  stated,  emblements,  or  fructus  indus- 
triales,  as  distinguished  from  spontaneous  products  or  perma- 
nent fruits,  seem  in  most  respects  to  be  considered  by  the  law 
as  chattels.  In  addition  to  passing  to  the  executor  instead  of 
to  the  heir,  they  may,  while  yet  unripe  and  unsevered,  be  seized 
[*26-i]  *and  sold  on  a  /?.  fa.  as  personal  property."  It  was  not, 
however,  till  the  statute  of  11  Geo.  II.,  ch.  19,  that  the  landlord 
had  power  to  distrain  corn,  grain,  or  other  produce  growing  on 

282   (1839).     See,  also,  Crosby  v.  Wadsworth,  6  East,  602   (1805).     [See 
Clark  V.  Banks,  6  Hous.  (Del.),  584.] 

11  Parham  v.  Thompson,  2  J.  J.  Marsh.,  159  (1829)  ;  Thompson  v.  Craig- 
myle,  4  B,  Mon.,  391  (1844)  ;  Brittain  v.  McKay,  1  Ired.  Law,  265  (1840)  ; 
Craddock  v.  Eiddlesbarger,  2  Dana,  205  (1834)  ;  Stewart  v.  Doughty,  9 
John.,  112  (1812)  ;  Whipple  v.  Foot,  2  John.,  418  (1817)  ;  Penhallow  v. 
Dwight,  7  Mass.,  34  (1810).  See,  also,  Shannon  v.  Jones,  12  Ired.,  206 
(1851);  Adams  v.  Tanner,  5  Ala.,  740  (1843).  [McKenzie  v.  Lampley, 
31  Ala.,  526,  528  (1858)  ;  Favorite  v.  Dcardorff,  84  Ind.,  555,  558  (1882)  ; 
Lindley  v.  Kelley,  42  Ind.,  294,  304  (1873)  ;  Polley  v.  Johnson,  52  Kan., 
478  (1893);  Mabry  v.  Harp,  53  Kan.,  398,  399  (1894);  Moreland  v. 
Myall,  77  Ky.,  474,  478  (1879);  Preston  v.  Kyan,  45  Mich.,  174,  175 
(1881);  Sims  v.  Jones,  54  Neb.,  769  (1898);  Smith  v.  Tritt,  18  N.  C, 
241,  242  (1835)  ;  Hershey  v.  Metzgar,  90  Pa.  St.,  217,  218  (1879)  ;  Ed- 
wards V.  Thompson,  85  Tenn.,  720,  721  (1887)  ;  Home  v.  Gambrell,  1  Tex. 
Ct.  of  App.,  Civ.,  §  997  (1881);  McDoiigall  v.  Waddell,  28  Up.  Can.  C.  P., 
191  (1877)  ;  see,  also,  Godfrey  v.  Brown,  86  111.,  454,  455  (1877)  ;  Heard 
V.  Fairbanks,  46  Mass.,  Ill  (1842)  ;  Johns  v.  Kamarad,  96  N.  W.,  118 
(Neb.,  1901);  Tipton  v.  Martzell,  21  Wash.,  273   (1899).] 

And  the  purchaser  thereof  at  execution  sale  may  maintain  trespass  to 
personal  chattels  against  one  who  tortiously  severs  the  corn  from  the 
stalks.     Brittain  v.  McKay   (supra).     [See,  post,  p.  *425.] 

[A  growing  crop  can  be  seized  as  a  movable.  Pickens  v.  Webster,  31  La. 
Ann.,  870,  875   (1879).] 

[An  unripe  growing  crop  is  personal  property  subject  to  attachment 
under  the  statute.     Eaventas  v.  Green,  57  Cal.,  254,  255   (1881).] 

[Growing  crops  are  "goods  and  chattels"  within  9  Anne,  c.  8,  s.  1,  and 
not  liable  to  be  taken  in  execution  against  a  tenant  unless  the  creditor 
pays  to  the  landlord  the  rent  due.  Allen  v.  Lloyd  (1851),  2  Irish  Com, 
Law,  53.] 

[But  see  Burleigh  v.  Piper,  51  Iowa,  649,  652  (1879),  where  it  is  said: 
"A  levy  of  an  execution  upon  an  unripe  and  growing  crop  is  not  valid 
as  against  subsequently  acquired  liens,  if  made  so  long  before  the  officer 
can  properly  proceed  to  advertise  and  sell  as  to  evince  an  intention  on 
the  part  of  the  judgment  creditor  to  hold  the  levy  for  a  time  merely  as 
security,  and  especially  if  it  is  reasonably  certain  at  the  time  of  the 
issuance  of  the  writ  that  it  can  not  be  fully  executed  by  the  sale  of  the 


364 


CHAP,   Vni,]  EMBLEMENTS,    ETC.  *264 

the  land  demised.^  2  And  under  the  statute  it  is  held  that  trees, 
shrubs  and  plants  growing  in  a  nursery  ground,  cannot  be  dis- 
trained for  rent,  the  word  "product"  in  the  8th  section  of  the 
statute  being  confined  to  products  of  a  similar  nature  with 
those  specified  in  that  section,  to  all  of  which  the  process  of 
becoming  ripe,  and  of  being  cut,  gathered,  made,  and  laid  up 
when  ripe,  was  incidental.^^ 

Growing  crops,  of  the  species  known  as  frustus  industriales, 
may  also  be  sold,  or  mortgaged  by  their  owners  as  chattels.^-* 

crop  (luring  the  life  of  the  writ."  Also  Ellithorpe  v.  Eeidesil,  71  Iowa, 
315,  317  (1887).  While  crops  are  immature,  they  constitute  a  part  of  the 
realty,  and  can  not  be  levied  upon  and  sold  on  execution  as  personal 
property.] 

[Crops  are  exempted  in  Alabama  Code,  1896,  §§  1891,  1921;  Gaston  v. 
Marengo  Imp.  Co.,  36  So.,  738,  739  (Ala.,  1904)  ;  Evans  v.  Lamar,  21  Ala., 
333,  335  (1852).  Also  in  Georgia,  by  §  3642,  before  maturity.  Scolley  v. 
Pollock,  65  Ga.,  339,  340  (1880);  unless  the  debtor  has  absconded.  Scott 
V.  Eussell,  72  Ga.,  35,  37  (1883).  In  Kentucky,  by  Art.  13,  Chap.  38,  of 
the  statutes,  corn  is  treated  as  personalty  and  subject  to  levy  and  sale 
after  October  first,  so  as  to  give  it  time  to  mature.  Moreland  v.  Myall,  77 
Ky.,  474,  478  (1879).  But  an  attachment  upon  a  growing  crop  before 
October  first  may  be  obtained  in  equity.  Farmers'  Bank  v.  Morris,  79  Ky., 
157,  159  (1880).] 

[Crops  upon  land  set  apart  as  a  homestead  are  exempt  from  levy.  Cox 
V.  Cook,  46  Ga.,  301,  302  (1872)  ;  even  though  mature,  if  unsevered.  Coates 
V.  Caldwell,  71  Tex.,  19,  21  (1888)  ;  Bailey  v.  Oliver,  9  S.  W.,  606  (Tex., 
1888);  Alexander  v.  Holt,  59  Tex.,  205,  206  (1883);  Parker  v.  Hale,  78 
S.  W.,  555  (Tex.  Civ.  App.,  1903)  ;  Allen  v.  Ashburn,  27  Tex.  Civ.  App., 
239,  242  (1901);  Phillips  v.  Warner,  4  Ct.  App.,  Civ.  Cas.,  §  147  (Tex., 
1890);  Cunningham  v.  Coyle,  2  Te.x.  Ct.  App.,  Civ.  Cas.,  §  423  (1884). 
Sec,  also,  Sparrow  v.  Pond,  49  Minn.,  412,  419  (1892).  And  they  do  not 
lose  their  exempt  character  by  being  wrongfully  impounded  and  severed. 
Stagg  v.  Piland,  31  Tex.  Civ.  App.,  245,  247   (1903).] 

>2See  Miller  v.  Green,  8  Bing.,  92,  107  (1831);  s.  c,  2  Tyr.,  1,  14;  2  C. 
&  .!.,   142,   162.      [See,  post,  p.  *361.] 

"Clark  v.  Gaskarth,  8  Taunt.,  431  (1818);  Clark  v.  Calvert,  8  Taunt., 
742   (1810). 

"Wintermuto  v.  Light,  46  Barb.,  278  (.1866);  Northern  v.  The  State,  1 
Ind.,  113  (1848);  Bricker  v.  Hughes,  4  Ind.,  146  (1853);  Graff  v.  Fitch, 
58  111.,  373  (1S71);  Cook  v.  Steel,  42  Tex.,  58  (1875).  See,  also,  Adams 
V.  Tanner,  5  Ala.,  740  (1843)  ;  Brown  v.  Turner,  60  Mo.,  21  (1875).  [Rob- 
inson V.  Mauldin,  11  Ala.,  977,  980  (1847);  Citizens'  Bank  v.  Wiltz,  31 
La.  Ann.,  244  (1879);  Crapo  v.  Seybold,  36  Mich.,  444,  445  (1877);  Nye 
V.  Patterson,  .35  Mir-h.,  41.3,  414  (1877);  State  v.  Williams,  32  Minn.,  537, 
539   (1884);   Glass  v.  Blazer,  91   Mo.  App.,  .564,  569    (1901);   Swafford  v. 

3G5 


•264:  THE  LAW  OP  FIXTURES.  [CHAP.   Vlll. 

Ill  Woatherly  v.  lliggiiis,^''''  a  charge  that  growing  corn  was  not 
susceptiblo  of  delivery,  was  held  misleading,  and  it  was  there 
said  that  growing  corn  can  be  as  easily  delivered  as  any  other 
article  of  commerce.^ '^  A  chattel  mortgage  can,  however,  oper- 
ate only  upon  property  in  actual  existence  at  the  time  of  its 
execution.    And  in  Comstock  v.  Scales,^'''  this  doctrine  was  ap- 

Spratt,  93  Mo.  App.,  631,  634  (1902);  Cudworth  v.  Scott,  41  N.  H.,  456, 
464  (1860);  Sexton  v.  Breese,  135  N.  Y.,  387  (1892),  aff'g  64  Supr.  Ct. 
(57  Hun),  1,  3  (1890);  Harder  v,  Plass,  64  Supr.  Ct.  (57  Hun),  540,  542 
(N.  Y.,  1890)  ;  Shaw  v.  Bowman,  91  Pa.  St.,  414,  417  (1879)  ;  Carson  v. 
Browder,  70  Tenn.,  701,  702  (1879);  Cameron  v.  Gibson,  17  Ont.,  233,  238 
(1889);  see,  also,  Forsyth  Mfg.  Co.  v.  Castlen,  112  Ga.,  199,  201  (1900); 
Schweinber  v.  Great  West.  Elev.   Co.,   9   N.  Dak.,   113    (1899).] 

[Under  the  California  Civil  Code,  growing  crops  can  only  be  mortgaged 
by  the  land-owner  as  chattels;  and,  as  against  third  parties,  they  are  not 
covered  by  a  mortgage  of  the  land.  Simpson  v.  Ferguson,  112  Cal.,  180 
(1896).] 

[A  crop  of  cotton  after  maturity  is  personal  property  within  §  4600  of 
the  code  prohibiting  a  mortgagor  of  personal  property  from  disposing  of 
the  same  without  the  consent  of  the  mortgagee;  and,  semble,  it  is  likewise 
before  maturity.  Hamilton  v.  State,  94  Ga.,  770,  772  (1894);  but  in 
Hardeman  v.  State,  16  Tex.  App.,  1  (1884),  under  a  similar  statute,  it 
was  held  that  a  growing  crop  was  not  "movable"  property  until  ready  to 
be  harvested.] 

[Under  the  Code,  a  privilege  for  supplies  furnished  for  crops,  is  a  privi- 
lege upon  movables  and  does  not  require  registration,  Weil  v.  Kent,  52 
La.  Ann.,  2139,  2144   (1900).] 

15  6  Ind.,  75   (1854). 

[There  can  not  be  a  present  delivery  of  growing  crops.  Branton  v. 
Griffits  (1877),  2  C.  P.  D.,  212,  aff'g  1  C.  P.  D.,  349.] 

16  See,  also,  Byassee  v.  Eeese,  34  Met.  (Ky.),  372  (1863)  ;  Graff  v.  Fitch, 
58  lU.,  373  (1871),  where  in  order  to  designate  and  set  apart  the  corn  sold 
from  the  remainder  of  the  field,  the  parties  cut  off  the  tops  of  one  row  of 
the  standing  corn  for  a  considerable  distance  in  from  the  fence.  See 
(post)  Stat.  Frauds  [and,  post,  p.  *267.  See,  also,  Thompson  v.  Wilhite, 
81  111.,  356,  358  (1876);  Smith  v.  Champney,  50  Iowa,  174  (1878);  Swaf- 
ford  V.  Spratt,  93  Mo.  App.,  631,  635  (1902);  Avitt  v.  Farrell,  68  Mo. 
App.,  66.5,  668  (1896);  State  v.  Durant,  53  Mo.  App.,  493,  497  (1893); 
State  V.  Casteel,  51  Mo.  App.,  143,  145  (1892)  ;  Lyle  v.  Shinnebarger,  17 
Mo.  App.,  66,  73  (1885)  ;  Doremus  v.  Howard,  23  N.  J.  Law,  390,  392 
(1852).  In  case  of  the  sale  of  standing  crops,  the  possession  is  in  the 
buyer  until  it  is  time  to  harvest  them,  and  until  then  he  is  not  required  to 
take  manual  possession  of  them.  Tieknor  v.  McClelland,  84  111.,  471,  473 
(1877).]     See,  however,  Lawson  v.  Patch,  5  Allen,  586    (1863). 

17  7  Wis.,  159   (18.58). 

366 


CH.AF.  Vm.]  EMBLEMENTS,    ETC.  *265 

*plied  to  the  case  of  a  chattel  mortgage  given  upon  [*265] 
"oats,  wheat  and  corn  [the  property  in  dispute]  at  or  about  the 
time  the  same  were  planted  and  before  the  same  were  up  or 
presented  the  appearance  of  growing  grain;"  and  it  was  con- 
sidered that  the  crop,  the  subject  matter  of  the  chattel  mort- 
gage, could  not  be  said  to  be  in  existence,  and  the  subject  matter 
of  the  chattel  mortgage  not  being  in  existence,  there  was  nothing 
for  the  mortgage  to  operate  upon.^^ 

18  But  ■where  a  person,  having  a  right  to  the  use  of  a  parcel  of  land,  a 
fallow,  for  the  purpose  of  raising  a  crop  of  wheat,  executed  a  chattel 
mortgage  upon  his  interest  in  the  fallow,  the  mortgage  was  held  to  bind 
his  interest  in  the  fallow  and  the  wheat  afterwards  raised  thereon  in  the 
exercise  of  that  right.  Shuart  v.  Taylor,  7  How.  Pr.,  251  (1852).  This 
was  not,  however,  the  case  of  a  mortgage  of  property  which  the  mortgagor 
did  not  own  at  the  time,  but  one  of  a  mortgage  upon  an  interest  in  prop- 
erty which  then  belonged  to  the  mortgagor;  and  the  wheat  subsequently 
sowed  might  well  be  bound  by  the  mortgage  of  the  interest  in  the  land. 
This  case  is  therefore  to  be  distinguished  from  Comstock  v.  Scales.  The 
case  of  Comstock  v.  Scales,  however,  if  properly  ruled  (as  to  which  quaere), 
seems  to  carry  the  doctrine  to  its  extreme  limit.     See  next  note. 

See,  also,  Hutchinson  v.  Ford,  9  Bush,  318  (1872);  s.  c,  15  Am.  Eep., 
711;  Milliman  v.  Neher,  20  Barb.,  37  (1855);  Bank  of  Lansingburgh  v. 
Crary,  1  Barb.,  542,  551   (1847);  Bellows  v.  Wells,  36  Vt.,  602   (1864). 

[A  mortgage  of  a  future  crop  is  valid  if  the  mortgagor  has  a  possessory 
interest  in  the  land  upon  which  it  is  to  be  grown,  even  though  the  land  is 
not  yet  plowed,  as  such  crop  has  a  potential  existence.  Thrash  v.  Bennett, 
57  Ala.,  1.56,  161  (1876);  Jones  v.  Webster,  48  Ala.,  109,  112  (1872); 
Brown  v.  Coats,  56  Ala.,  439,  444  (1876);  Wilkerson  v.  Thorp,  128  Cal., 
221,  226  (1900);  Arques  v.  Wasson,  51  Cal.,  620,  624  (1877);  Wheeler  v, 
Becker,  68  Iowa,  723  (1886);  Ambuehl  v.  Matthews,  41  Minn.,  537,  540 
(1889);  Miller  v.  McCormick  Maeh.  Co.,  35  Minn.,  399  (1886);  Minnesota 
Linseed  Oil  Co.  v.  Maginnis,  32  Minn.,  193,  195  (1884)  ;  Kussell  v.  Stevens, 
70  Miss.,  68.5,  687  (1893)  ;  Cumberland  Nat.  Bank  v.  Baker,  57  N.  J.  Eq., 
231  (1898)  ;  Rawlings  v.  Hunt,  90  N.  C,  270,  272  (1884)  ;  Harris  v.  Jones, 
83  N.  C,  317,  322  (1880);  Womble  v.  Leach,  83  N.  C,  84,  90  (1880); 
Gotten  V.  Wiiloughby,  83  N.  C,  75,  78  (1880)  ;  Rountroe  v.  Britt,  94  N.  C, 
104,  108  (1886);  Kimball  v.  Sattlcy,  55  Vt.,  285,  290  (1883);  Grass  v. 
Austin,  7  Up.  Can.  App.,  511,  514  (1882).] 

[A  mortgage  of  crops  to  bo  grown  during  five  years  is  valid  as  against 
exccution-creditorH,  as  the  lion  of  the  mortgngo  attaches  as  soon  as  the 
crops  come  into  existence.  Hoadrick  v.  Brattain,  63  Ind.,  438  (1878)  ;  but 
in  Loftin  v.  Hines,  107  N.  C,  360  (1890),  it  is  said  that,  upon  grounds  of 
public  policy,  a  mortgage  of  all  crops  "hereafter  to  be  cultivated"  is 
invalid  as  to  crops  whicli  arc  raised  after  the  one  planted  or  about  to  be 
planted  at  the  time  of  the  execution  of  the  mortgage.] 

367 


*2li5  THE  LAW  OP  FIXTURES.  [CHAP.   VIII. 

[Uiuler  the  Alabama  Code,  §  1064,  a  mortgage  of  an  unplanted  crop, 
executed  on  or  after  the  first  day  of  January  of  the  year  in  which  such 
crops  are  grown,  conveys  the  legal  title  thereto.  Shows  v.  Brantley,  11*7 
Ala.,  352,  354  (1899).  Under  Arkansas  act  of  February  11,  1875,  a  mort- 
gage on  crops  to  be  grown  is  valid.  Senter  v.  Mitchell,  16  Fed.,  206,  207 
(U.  S.  C.  C,  1SS3);  Jarratt  v.  McDaniel,  32  Ark.,  598,  603   (1877).] 

[A  mortgage  of  a  crop  afterwards  to  be  planted,  being  of  personalty, 
may  be  made  without  writing.  Stearns  v.  Gafford,  56  Ala.,  544,  545 
(1876).] 

In  Bagshaw  v,  Farnsworth,  2  L.  T.  (N.  S.),  390  (1860),  quaere  whether 
a  sheriff  could  seize  and  sell  crops  of  seed  sown,  before  they  were  sprung 
up.  Pollock,  C.  B. :  "  The  seed  sown  or  planted  in  the  ground,  it  is  said, 
is  not  yet  above  the  earth;  but  under  the  name  of  a  growing  crop  how 
can  you  take  a  possibility?  A  growing  crop  one  would  suppose  to  mean 
something  appearing  above  the  ground  and  to  be  growing,  and  not  the 
seed  dying  before  it  becomes  the  new  plant. ' '  See,  however,  contra,  An- 
drew v.  Newcomb,  32  N.  Y.,  417  (1865);  Hob.,  132;  Cook  v.  Steel,  42 
Tex.,  58  (1875),  where  it  was  said  that  the  cotton  having  been  planted 
before  the  date  of  the  contract  its  growth  towards  maturity  at  that  time 
could  not  be  material  as  affecting  the  right  to  dispose  of  it  by  the  mort- 
gage. 

[A  crop,  after  the  seed  is  sown,  has  an  actual  as  well  as  a  potential 
existence,  and  passes  under  a  chattel  mortgage.  Crine  v.  Tifts,  65  Ga., 
644,  646  (1880) ;  Stephens  v.  Tucker,  55  Ga.,  543,  544  (1875) ;  Hansen  v. 
Dennison,  7  111.  App.,  73,  77  (1880);  Cudworth  v.  Scott,  41  N.  H.,  456, 
461  (1860);  Ayers  v.  Hawk,  11  Atl.,  744,  745  (N.  J.  Ch.,  1887);  Laing  v. 
Ontario  Loan  Co.,  46  Up.  Can.  Q.  B.,  114,  125   (1881).] 

[A  mortgage  may  be  made  on  a  growing  crop;  and  a  crop  must  be 
treated  as  growing  from  the  time  the  seed  is  deposited  in  the  ground,  as 
at  that  time  it  loses  its  qualities  as  a  chattel,  and  becomes  part  of  the 
freehold.     Wilkinson  v.  Ketler,  69  Ala.,  435,  440  (1881).] 

[Under  §  315,  C.  66,  Minnesota  Gen.  Stat.,  1878,  a  levy  may  be  made 
upon  grain  or  grass  while  growing;  and,  under  this  section,  if  the  grain 
has  sprouted,  it  is  not  necessary  that  the  growth  should  have  extended 
above  the  top  of  the  soil.     Gillitt  v.  Truax,  27  Minn.,  528,  529  (1881).] 

[It  will  be  assumed  that,  according  to  the  course  of  husbandry  crops 
have  been  planted  prior  to  May  twenty-sixth.  Gotten  v.  Willoughby,  83 
N.  C,  75,  78   (1880).] 

[Courts  will  take  judicial  notice  of  the  seasons,  and  of  the  general  course 
of  agriculture,  and  will  take  notice  that  a  crop  of  cotton,  upon  which  a 
mortgage  was  intended  to  operate,  was  not  planted  at  the  date  of  the 
recording  of  the  mortgage,  January  twenty-ninth.  Tomlinson  v.  Green- 
field, 31  Ark.,  557,  558  (1876).  But,  quaere,  will  courts  take  judicial 
notice  that  a  crop  of  wheat  has  been  severed  from  the  soil  before  November 
seventeenth.     State  v.  Williams,  32  Minn.,  537,  539  (1884).] 

368 


CHAP.   Vni.]  EMBLEMENTS,   ETC. 


^266 


Growing  crops  also  pass  under  tlie  assignment  to  the  as- 
signee in  bankruptcy  of  the  owner  of  the  land,  and  should  be 
placed  by  the  bankrupt  upon  his  schedule  of  personal  property.^ 

They  are  also  so  far  regarded  as  personal  property  as  to 
authorize  an  action  of  trespass  before  a  justice  of  the  peace  for 
an  injury  thereto,  where  the  damages  claimed  are  within  the 
jurisdiction  of  that  court,  although  by  statute  that  court  has 
*no  jurisdiction  of  actions  of  trespass  to  realty .2  Trover  [*266] 
also  lies  for  their  severance  and  conversion.^  So,  ripe  corn 
standing  upon  the  stalk  and  not  severed  therefrom  nor  from  the 
land,  may  be  recovered  in  replevin  under  the  statute  for  the 
recovery  of  personal  property.^ 

iln  re  Schumpert,  8  Nat.  Bank  Reg.,  415  (1873).  [Be  Barrow,  98 
Fed.,  582,  583  (U.  S.  Dist.  Ct.,  Va.,  1899).  Nor  is  the  rule  different  as 
to  crops  growing  upon  a  homestead  in  voluntary  bankruptcy.  Re  Daubner, 
96  Fed.,  805,  806  (U.  S.  Dist.  Ct.,  Ore.,  1899)  ;  Be  Hoag,  97  Fed.,  543 
(U.  S.  Dist.  Ct.,  Wis.,  1899).  See,  also.  Be  Coffman,  93  Fed.,  422  (U.  S. 
Dist.  Ct.,  Tex.,  1899).] 

[Wheat  growing  upon  a  homestead,  is  a  part  thereof,  and  does  not  pass 
to  an  assignee  in  insolvency.     Dascey  v.  Harris,  65  Cal.,  357    (1884).] 

2  Reed  v.  Johnson,  14  111.,  257  (1852).  The  court  below  in  this  case  held 
that  a  justice  of  the  peace  had  no  jurisdiction  on  the  ground  that  the 
growing  corn  was  real  estate  and  that  under  the  statute  justices  of  the 
peace  had  jurisdiction  only  in  actions  of  trespass  to  personal  property. 
See,  also,  Brittain  v.  McKay,  1  Ired.  Law,  265   (1840). 

[In  an  action  of  trespass  quare  cMisum  f regit,  an  allegation  of  the 
destruction  of  personal  property  is  sustained  by  evidence  of  the  destruc- 
tion of  a  crop  of  potatoes.  Salimonie  Mining  Co.  v.  Wagner,  2  Ind.  App., 
81,  83   (1891).] 

[Where  the  jurisdiction  of  justices  of  the  peace  over  actions  arising 
ex  delicto  is  confined  to  "cases  of  injuries  or  damages  to  personal  prop- 
erty" he  has  no  jurisdiction  of  an  action  for  damages  for  burning  an 
immature  crop  and  grass  growing  upon  land  belonging  to  the  owner  of 
the  crops.     Bagley  v.  Columbus  R 'y  Co.,  98  Ga.,  626    (1896).] 

3  Dunne  v.  Ferguson,  Hayes,  540  (1832).  [See,  post,  p.  *430.  Mueller 
V.  Olson,  90  Minn.,  416,  417  (1903) ;  McKay  v.  Pearson,  6  Pa.  Super.,  529, 
535   (1898).] 

4  Mattock  V.  Fry,  15  Ind.,  483  (1860).  [Baker  v.  Mclnturff,  49  Mo. 
App.,  505,  506   (1892).] 

[Replevin  will  lie   for  ungathcrcd  corn   standing  in   the  field,  especially 
if  admitted  to  be  mature  at  the  time  of  bringing  the  action.     Salmon  v. 
Fewell,  17  Mo.  App.,  118,  126   (1885).] 
24  369 


♦2GG  THE   LAW   OF   FIXTURES.  [CHAP,   VIII. 

F rust  US  iudustriales  have  also  been  held  to  be  chattels  within 
the  meaning  of  the  registry  laws.-'"' 

There  has  been  considerable  confusion  among  the  authori- 
ties with  reference  to  the  eiVect  of  the  -Ith  section  of  the  Statute 
of  Frauds'^  upon  contracts  for  the  sale  of  vegetable  products 
growing  in  or  upon  the  land.  With  reference,  however,  to 
sales  of  growing  crops  {fnictus  iudustriales)  raised  annually 
by  labor,  industry  and  manurance,  as  distinguished  from  trees, 
grass,  and  other  spontaneous  growths  (prima  vestura),  the 
clear  weight  of  authority  seems  now  to  be  that  they  are  not 
contracts  or  sales  of  lands,  tenements,  or  hereditaments  or  any 
interest  in  or  concerning  them  within  said  section,  and  hence 
need  not  be  in  writing^     But  if  it  is  a  part  of  the  contract 

[Annual  crops  are  the  subject  of  replevin  whether  growing  or  matured, 
and  courts  take  judicial  notice  that  certain  crops  mature  at  certain  seasons 
[in  this  case,  December].     Garth  v.  Caldwell,  72   Mo.,  622    (1880).] 

5  Robinson  v.  Ezzell,  72  N.  C,  231  (1875).  So  held  in  this  case  in  a 
controversy  with  the  register  who  was  entitled  to  a  fee  of  80  cts.  for 
recording  the  instrument,  if  the  "corn  crop"  was  real  estate;  but  only 
20  cts.  for  registration  thereof,  if  the  instrument  was  a  chattel  mortgage. 

6  29  Chas.  2,  c.  3   (anno,  1676). 

7  See  Northern  v.  The  State,  1  Ind.,  113  (1848);  Bricker  v.  Hughes,  4 
Ind.,  146  (1853)  ;  Sherry  v.  Pick'en,  10  Ind.,  375  (1858)  ;  Newcomb  v. 
Ramer,  2  John.,  421,  note  (1807)  ;  Austin  v.  Sawyer,  9  Cow.,  39  (1828)  ; 
Westbrook  v.  Eager,  16  N.  J.  Law,  81  (1837)  ;  Bull  v.  Griswold,  19  111., 
631  (1858);  Bryant  v.  Crosby,  40  Me.,  21  (1855);  Marshall  v,  Ferguson, 
23  Cal.,  65  (1863);  Davis  v.  McFarlane,  37  Cal.,  634  (1869);  Kingsley  v. 
Holbrook,  45  N.  H.,  313  (1864);  Dunne  v.  Ferguson,  Hayes,  540  (1832); 
Evans  v.  Roberts,  5  B.  &  C,  829  (1826);  Jones  v.  Flint,  10  Ad.  &  E.,  753 
(1839);  s.  C,  2  P.  &  D.,  594;  Sainsbury  v.  Matthews,  4  M.  &  W.,  343 
(1838).     See,  also,  Browne  on  Stat,  of  Frauds,   §   237,  et  seq.,  and  cases 

there  cited;  also  cases  cited  i)Ost,  p.  *269,  note  (i*).  [Nuernberger  v. 
Von  Der  Heidt,  39  111.  App.,  404,  405  (1890);  Dayton  v,  Dakin,  103 
Mich.,  65,  73  (1894);  Holt  v.  Holt,  57  Mo.  App.,  272  (1894);  see,  also. 
Smock  v.  Smock,  37  Mo.  App.,  56  (1889).  But  see  Kerr  v.  Hill,  27  W. 
Va.,  576,  605   (1886).] 

It  is  immaterial  so  far  as  regards  this  question  whether  at  the  time  of 
making  the  contract  the  product  is  matured  or  still  growing.  See  Warwick 
V.  Bruce,  2  M.  &  S.,  205  (1813) ;  Evans  v.  Roberts,  5  B.  &  C,  829  (1826)  ; 
Sainsbury  v.  Matthews  (supra)  ;  Jones  v.  Flint,  10  Ad.  &  E.,  753  (1839)  ; 
Bryant  v.  Crosby,  40  Me.,  21  (1855)  ;  Westbrook  v.  Eager,  16  N.  J.  Law, 
81  (1837)  ;  Browne  on  Stat.  Frauds,  §  246,  and  the  cases  above  cited.  See 
also,   Tripp  v.  Hasceig,  20  Jlich.,   254    (1870).     See,  however,  Parker  v. 

370 


CHAP,   VIII.]  EMBLEMENTS,    ETC. 


^267 


*that  the  purchaser  of  the  crop  shall  have  the  beneficial  [*267] 
use  of  the  soil  of  the  vendor  in  the  interval  of  time  between  the 
contract  of  sale  and  delivery  of  the  crop,  for  the  purpose  of 
raising  such  crop  Avhich  when  mature  is  to  belong  to  the  pur- 
chaser, the  case  is  otherwise,  and  the  contract  is  for  an  interest 
in  the  land.  The  mere  fact,  however,  that  the  crop  purchased 
may  or  will  incidentally  receive  nourishment  from  the  soil  of 
the  vendor  in  the  said  interval  of  time,  is  not  conclusive  of 
the  question,  where  the  beneficial  use  or  possession  of  the  land 
whereon  the  crop  is  growing  is  not  contracted  for.^ 

Sales  of  growing  crops  seem,  however,  to  be  conceded  to  be 
contracts  for  the  sale  of  goods,  wares  and  merchandise,  within 
the  17th  section  of  said  statute.^ 

Staniland,  11  East,  362   (1809);  Powell  v.  Eich,  41  111.,  466  (1866).    [Cut- 
ler V.  Pope,  13  Me.,  377,  380    (1836).] 

[Growing  hops,  produced  by  annual  cultivation,  are  subject  to  sale  as 
personal  property.  Frank  v.  Harrington,  36  Barb.,  415,  420  (N.  Y., 
1862);  likewise,  timothy,  Hosli  v.  Yokel,  57  Mo.  App.,  622,  625  (1894); 
fruit  growing  on  trees.  Vulicevich  v.  Skinner,  77  Cal.,  239,  240  (1888) ; 
and   nursery    trees.      Mcintosh  v.    McLeod,    6    Nova    S.    L.   E.,    128,    133 

(1886).] 

[A  chattel  mortgage  of  a  crop  may  be  made  without  writing.  Stearns 
V.  Gafford,  56  Ala.,  544,  545  (1876)  ;  Gafford  v.  Stearns,  51  Ala.,  434,  443 
(1874).] 

[As  to  verbal  reservations  of  a  growing  crop  from  a  conveyance  of  land, 

see,  ante,  p.  *252.] 

8  See  Evans  v.  Eoberts,  5  B.  &  C,  829  (1826);  Warwick  v.  Bruce,  2  M. 
&  S.,  205  (1813);  Jones  v.  Flint,  10  Ad.  &  E.,  753  (1839);  Sainsbury  v. 
Matthews,  4  M.  &  W.,  343  (1838);  Crosby  v.  Wadsworth,  6  East,  602 
(1805). 

See  the  whole  subject  considered  at  considerable  length  in  Browne  on 
Stat.  Frauds,  §§  247,  248,  et  seq. 

[A  parol  lease  for  one  year  with  an  agreement  that  the  tenant  may 
enter  after  the  expiration  of  the  lease  and  reap  the  crop,  is  void  under 
the  Statute  of  Frauds,  its  effect  being  to  extend  the  lease  into  the  second 
year,  and  the  right  to  enter  and  reap  being  an  interest  in  land.  Upon  the 
tenant's  leaving  the  premises,  paying  no  rent,  the  landlord  can  take  pos- 
session of  the  crops.     Carney  v.  Mosher,  97  Mich.,  554    (1893).] 

0  Watts  v.  Friend,  10  B.  &  C,  446  (1830);  Bowman  v.  Conn,  8  Ind.,  58 
(1856)  ;  Sherry  v.  Picken,  10  Ind.,  375  (1858)  ;  Dunne  v.  Ferguson,  Hayes, 
540  (1832).  See,  also,  Smith  v.  Bryan,  5  Md.,  141  (1853);  Crosby  v. 
Wadsworth,  6  East,  602   (1805). 

See,  however,  Waddington  v.  Bristow,  2  B.  &  P.,  452  (1801);  Crosby  v. 
Wadsworth,  6  East,  602   (1805). 

371 


•268  THE   LAW   OF   FIXTURES.  [CHAP.    VIII, 

Growing  periodical  crops  {fructus  industrialcs) ,  are  not, 
however,  wliile  growing  and  until  ready  for  the  harvest,  goods 
and  chattels  within  the  meaning  of  the  Statutes  concerning 
Fraudulent  Conversances  and  Contracts,  of  which  a  sale  in 
order  to  be  valid  as  against  the  cre<litors  of  a  vendor,  must  be 
accompanied  by  an  immediate  delivery  and  followed  by  an 
actual  and  continued  change  of  possession.^ ^ 

[*268]  *With  reference  to  contracts  for  the  sale  of  trees,  grass, 
and  other  spontaneous  productions  {prima  vesiura)  of  the  earth, 
there  is  considerable  diversity  of  authority  as  to  when  such 
sales  are  within  the  4th  section  of  the  Statute  of  Frauds.  One 
class  of  authorities  lays  down  the  rule,  "that,  if  sold  specifically, 
and  to  be  by  the  terms  of  the  contract  delivered  separately 
and  as  chattels,  such  a  contract  of  sale  is  not  affected  by  the 
fourth  section  of  the  statute,  as  amounting  to  a  sale  of  any  in- 

[1x1  a  division  of  growing  crops  between  tenants  in  common  thereof 
such  crops  are  classed  as  personal  property.  Keynolds  v.  Eeynolds,  55 
Supr.  Ct.   (48  Hun),  142,  144  (N.  Y.,  1888).] 

10  See  Davis  v.  McFarlane,  37  Cal.,  634  (1869);  Bours  v.  Webster,  6 
Cal.,  660  (1856);  Bernal  v.  Hovious,  17  Cal.,  541  (1861);  Bellews  v. 
Wells,  36  Vt.,  599  (1864);  Bobbins  v.  Oldham,  1  Duvall,  28  (1863).  See, 
also,  Visher  v.  Webster,  13  Cal.,  58  (1859);  Pacheco  v.  Hunsacker,  14  Cal., 
120  (1859);  Fry  v.  Miller,  45  Penn.  St.,  441  (1863);  Groff  v.  Fitch,  58 
III.,  373  (1871);  Weatherly  v.  Higgins,  6  Ind.,  75  (1854);  Fitch  v.  Burk, 
38  Vt.,  683  (1866);  Sterling  v.  Baldwin,  42  Vt.,  311  (1869).  [See,  ante, 
p.  *264.  See,  contra,  Smith  v.  Champney,  50  Iowa,  174  (1878)  ;  State  v. 
Durant,  69  Mo.  App.,  390,  394   (1896).] 

[Fructus  industrialcs  are  not  within  the  Statute  of  Frauds,  and  an  agree- 
ment of  sale  thereof  need  not  be  recorded.  Carson  v.  Browder,  70  Tenn., 
701,  702    (1879).] 

[Where  a  transfer  of  land  is  void  for  want  of  a  writing,  a  transfer  of 
wheat  inseparably  connected  with  it,  is  void  also.  Jackson  v.  Evans,  44 
Mich.,  510,  513   (1880).] 

The  Statute  of  California,  referred  to  in  the  text  (sec.  15  of  an  act 
entitled  "An  Act  Concerning  Fraudulent  Conveyances  and  Contracts," 
passed  April  19,  1850.  1  Ilittell's  Gen.  Laws  of  Cal.,  §  3159),  is  as  fol- 
lows: "Every  sale  made  by  a  vendor  of  goods  and  chattels  in  his  pos- 
session, or  under  his  control,  and  every  assignment  of  goods  and  chattels, 
unless  the  same  be  accompanied  by  an  immediate  delivery,  and  be  followed 
by  an  actual  and  continued  change  of  possession  of  things  sold  or  assigned, 
shall  be  conr-lusive  evidence  of  fraud  as  against  the  creditors  of  the 
vendor,  or  the  creditors  of  the  person  making  such  assignment  or  subse- 
quent purchasers  in  good  faith." 

372 


CHAP.  Vm,]  EMBLEMENTS;   ETC.  *269 

terest  in  the  land;"  and  these  authorities  make  no  distinction 
in  this  respect  between  spontaneous  growths,  or  those  raised 
by  periodical  cultivation.  The  rule  is  thus  stated  by  Mr. 
Bro^\Tie  in  his  work  on  the  Statute  of  Frauds^  as  being  the 
more  approved  and  satisfactory  rule  to  be  deduced  from  the 
authorities.^  2 

♦Another  class  of  cases,  however,  makes  a  distinction  [*269] 
between  trees,  grass  and  other  spontaneous  productions,  and 
growing  crops  of  grain,  vegetables,  etc.,  produced  annually  by 
labor,  cultivation  and  manurance;  and  determines  the  question 

11  Sec.  237,  et  seq. 

12  See,  however,  see.  250,  where  the  learned  author  admits  that  the  doc- 
trine supported  by  the  text  has  attracted  much  favor  of  late  years.     The 
reader  is  referred  to  Mr.  Browne 's  valuable  work  for  a  full  presentation  of 
his  view  of  the  law  and  the  cases  supporting  it,  into  which  it  would  be 
foreign  to  the  purpose  of  this  volume  to  enter  more  at  length.     See,  also, 
Smith  V.  Surman,  9  B.  &  C,  561   (1829)  ;  Marshall  v.  Green,  L.  E.  1  C.  P. 
D     35  (1875) ;  s.  c,  45  L.  J.  C.  P.,  153;  Lee  v.  Gaskell,  45  L.  J.   (Q.  B. 
D.),  540  (1876),  per  Cockburn,  C.  J.;  1  Ld.  Kaym.,  182;  Cain  v.  McGuire, 
13  B    Mon.,   340    (1852);   Byassee  v.   Eeese,  4   Met.    (Ky.),   372    (1863); 
Whitmarsh  v.  Walker,  1  Met.,  313   (1840)  ;   Xettleton  v.  Sikes,  8  Met.,  34 
(1844)  •  Clafflin  v.  Carpenter,  4  Met.,  580   (1842)  ;  Smith  v.  Bryan,  5  Md., 
141   (1853)  ;  Burner  v.  Piercy,  40  Md.,  212   (1874)  ;   Erskine  v.  Plummer, 
7  Me.,  447  (1831)  ;  Huff  v.  McCauley,  53  Penn.  St.,  206  (1866)  ;  Yeakle  v. 
Jacob,    33    id.,    376    (1859);    McClintock's    Appeal,    71    id.,    365    (1872); 
Pattison's  Appeal,  61  id.,  294   (1869).     [See  Wiggins  v.  Jackson,  24  Ky^ 
Law  R.,  2189,  2190   (1903)  ;   Tilford  v.  Dotson,  21  Ky.  Law  E.,  333,  33d 
(1899)!  Asher  Lumber  Co.  v.  French,  18  Ky.  Law  E.,  682,  683    (1896); 
Cardwell  v.  Atwatcr,  15  Ky.  Law  E.,  570,  572  (1894:)  ;  Hunter  v.  Burchett, 
5  Ky  Law  E.,  770  (1884)  ;  Sproule  v.  Hopkins,  4  Ky.  Law  E.,  533  (1882)  ; 
Banton  v.  Shorey,   77  Me.,  48,  51    (1885)  ;   Leonard  v.  Modford,   85   Md., 
606   672  (1897);  Douglas  v.  Shunway,  79  Mass.,  498,  502  (1859);  Kirkcby 
V    Erirkson,  90   Minn.,   299    (1903);    Avitt  v.  Farrell,   68   Mo.  App.,   665, 
668    (1896);    Eobbins  v.  Farwell,   193   Pa.  St.,   37,  44   (1899);   Bowers  v. 
Boweis,  95  Pa.  St.,  477,  480  (1880)  ;  Wilson  v.  Trvin,  1   Ponnypacker,  203, 
208    (Pa.,   1881);   Fish  v.  Capwell,   18   E.   T.,  667,  670    (1894);   Handy  v. 
Carruthers,  25  Ont.,  279,  280    (1894);   Summers  v.  Cook,  28  Gr.  Ch.,  179 

(Ont.,  1880).]  . 

The  Pennsylvania  cases  above  referred  to,  while  recognizing  the  distinc- 
tion between  spontaneous  productions  and  crops  produced  by  labor,  etc., 
also  make  a  distinction  between  contracts  for  the  sale  of  timber  contem- 
plating an  immediate  severance  thereof  and  those  which  do  not,  holding 
the  latter  to  bo  within  the  statute,  and  the  former  not.  [See  Commissioners 
of  Taxes  v.  Kauri  Timber  Co..  17  N.  Z.,  696,  710   (1899).] 

373 


•269  THE  LAW  OF  FIXTURES,  [CHAP,   VIII. 

of  the  applicability  of  the  statute  upon  this  distinction,  holding, 
as  above  stated,  verbal  contracts  for  the  latter^ ^  (which,  as  we 
have  seen,  are  in  most  respects  considered  to  be  chattels)  to  be 
valid,  and  verbal  contracts  for  the  former  (which,  as  has  been 
seen,  are  considered  as  passing  to  the  heir  as  part  of  the  realty 
and  not  to  the  executor)  to  be  invalid.  This  rule,  while  hav- 
ing the  merit  of  simplicity  and  ease  of  application,  is  believed 
also  to  be  more  in  harmony  with  the  principles  already  laid 
down  in  this  chapter  as  governing  these  species  of  property; 
and  it  is  also  believed  to  be  supported  by  the  weight  of  mod- 
ern authority,^"*  though  there  are  well  considered  cases  sup- 
porting the  rule  first  laid  down.^^ 

13  With  the  limitation,  of  course,  that  they  do  not  come  ■within  the  prohi- 
bition of  the  17th  section.     [See,  ante,  p.  *267.] 

1*  See  Green  v.  Armstrong,  1  Den.,  550  (1845);  McGregor  v.  Brown,  10 
N.  Y.,  117  (1854);  Pierrepont  v.  Barnard,  5  Barb.,  364  (1849);  Goodyear 
V.  Vosburg,  57  Barb.,  243  (1869);  s.  c,  39  How.  Pr.,  377;  Warren  v. 
Leeland,  2  Barb.,  614  (1847);  Mclntyre  v.  Barnard,  1  Sandf.  Ch.,  52 
(1843);  Buck  v.  Pickwell,  27  Vt.,  157  (1855);  Kingsley  v.  Holbrook,  45 
N.  H.,  313  (1864)  ;  Hobbs  v.  Wetherwax,  38  How.  Pr.,  388  (1868) ;  Vore- 
beck  V.  Eoe,  50  Barb.,  305  (1867);  Howe  v.  Batchelder,  49  N.  H.,  204 
(1870) ;  Putney  v.  Day,  6  N.  H.,  430  (1833)  ;  Olmstead  v.  Niles,  7  N.  H., 
522  (1835);  Owens  v.  Lewis,  46  Ind.,  488  (1874),  where  the  cases  are 
fully  collected;  Evans  v.  Eoberts,  5  B.  &  C,  829  (1826)  ;  Scorell  v.  Boxall, 
1  Y.  &  J.,  396  (1827);  Teal  v.  Auty,  2  B.  &  B.,  99  (1820).  See,  also, 
Liford's  Case,  11  Co.,  46  b  (1614);  s.  C,  1  Rolle,  95;  Tottell  v.  Howell, 
Koy,  54;  Boisaubin  v.  Reed,  2  Keyes,  323  (1866);  Slocum  v.  Seymour,  36 
N,  J,  Law,  138  (1873)  ;  Pattison's  Appeal,  61  Penn.  St.,  294  (1869)  ;  Giles 
V.  Simonds,  15  Gray,  441  (1860);  Fitch  v.  Burk,  38  Vt.,  687  (1866); 
Sterling  v.  Baldwin,  42  Vt.,  308  (1869);  Stearns  v.  Washburn,  7  Gray, 
188  (1856);  Lawson  v.  Patch,  5  Allen,  586  (1863);  7  Gray,  190;  13  Alb. 
Law  Jour.,  70,  and  cases  there  cited.  [See  Heflin  v.  Bingham,  56  Ala., 
566,  574  (1876)  ;  Jenkins  v.  Lykes,  19  Fla.,  148,  158  (1882)  ;  Douglas  v. 
Bunn,  110  Ga.,  159,  162  (1899);  Morgan  v.  Perkins,  94  Ga.,  353,  355 
(1894)  ;  Hostetter  v.  Auman,  119  Ind.,  7,  12  (1888)  ;  Armstrong  v.  Law- 
son,  73  Ind.,  498,  500  (1881);  Terrell  v.  Frazier,  79  Ind.,  473,  476  (1881); 
Garner  v.  Mahoney,  115  Iowa,  356,  357  (1902)  ;  Smith  v.  Leighton,  38 
Kan.,  544,  546  (1888);  Powers  v.  Clarkson,  17  Kan.,  218,  220  (1876); 
Williams  v.  Flood,  63  Mich.,  487  (1886);  Kileen  v.  Kennedy,  90  Minn., 
414  (1903);  Walton  v.  Lowrey,  74  Miss.,  484  (1896);  Harrell  v.  Miller, 
35  Miss.,  700  (1858);  Nelson  v.  Lawson,  71  Miss.,  819,  820  (1894);  Alt 
V,  Grosclose,  61  Mo.  App.,  409,  412  (1895);  Drake  v.  Howell,  133  N.  C, 
162  (1903);  Hirth  v.  Graham,  50  Ohio  St.,  57  (1893);  Clark  v.  Guest, 
54  Ohio  St.,  298,  302  (1896)  ;  Miller  v.  Zufall,  113  Pa.  St.,  317,  323  (1886) ; 

374 


CHAP,  Vm.]  EMBLEMENTS,  ETC.  *270 

*  While,  as  above  stated,  the  correct  rule  seems  to  be,  [*270] 
that  growing  trees,  grass  and  other  spontaneous  products,  are 
parcel  of  the  realty,  and  a  conveyance  of  them  is  a  conveyance 
of  an  interest  in  lands  and  within  the  Statute  of  Frauds,  still 
they  may,  when  such  is  the  intention  of  the  parties,  be  severed 
in  law  from  the  land  and  become  personal  property  without  an 
actual  severance;  as  where  the  owner  of  the  land  by  a  valid 
deed  of  conveyance  in  writing  sells  the  trees  or  grass  to  a 
third  person,  or  where  he  sells  the  land  reserving  the  trees  or 
grass.  In  both  these  cases  the  trees  or  grass,  when  such 
appears  to  be  the  intentioni^  of  the  parties,  become  chattels 
distinct  from  the  soil,  and  thereafter  go  to  the  executor  instead 
of  the  heir;  they  may  also  thereafter  be  transferred  by  parol, 
for  in  contemplation  of  law  they  are  abstracted  from  the  earth.^'^ 

Knox  V.  Haralson,  2  Tenn.  Ch.,  232,  237;  Cady  v.  Sanford,  53  Vt.,  632, 
636  (1881);  Fluharty  v.  Mills,  49  W.  Va.,  446  (1901);  Mississippi  Log- 
ging Co.  V.  Miller,  109  Wis.,  77,  84  (1901);  McMillen  v.  Pratt,  89  Wis., 
612,  631  (1895)  ;  Lillie  v.  Dunbar,  62  Wis.,  198,  202  (1885)  ;  Daniels  v. 
Bailey,  43  Wis.,  566  (1878)  ;  Bruley  v.  Garvin,  105  Wis.,  625,  629  (1900)  ; 
Seymour  v.   Cushway,   100   Wis.,   580,   590    (1898).] 

[A  reservation  of  trees  by  the  grantor  of  land,  can  not  be  made  by  parol. 
Dodder  v.  Snyder,  110  Mich.,   69,  70    (1896).] 

So,  in  Kodvvell  v.  Phillips,  9  M.  &  W.,  501  (1842),  it  was  held,  that  an 
agreement  for  the  sale  of  fruit  growing  upon  trees  was  an  agreement  for 
the  sale  of  an  interest  in  land,  and  required  a  stamp,  if  the  interest  was 
of  the  value  of  £20. 

[A  deed  of  growing  timber  conveys  land  within  the  meaning  of  the 
registry  laws;  and,  if  duly  recorded,  is  admissible  in  evidence  without 
proof  of  execution.  McRae  v.  Stillwell,  111  Ga.,  65,  72  (1900).  An  assign- 
ment in  conditional  form  of  a  permit  to  cut  and  remove  standing  trees 
need  not  be  recorded  as  a  chattel  mortgage.  Putnam  v.  White,  76  Me., 
551,   555    (1884).] 

10  See  ante,  p.  '268,  note  (12). 

"See  McC'lintock's  Appeal,  71  Penn.  St.,  365  (1872);  Clap  v.  Draper,  4 
Mass.,  266  (1808);  Knotts  v.  Ilydrick,  12  Eich,,  314  (1859);  Kich  v.  Zeils- 
dorff,  22  Wis.,  544  (1868).  [Bobbins  v.  Farwell,  193  Pa.  St.,  37,  45 
(1899) ;  see,  also,  Cooley  v.  Kansas  City,  &c.,  K.  K.  Co.,  149  Mo.,  487,  493 
(1899);  Billings  v.  Billings,  1  Pennypacker,  145,  152  (Pa.,  1881);  and, 
ante,  p.  *45.] 

IT  Bank  of  Lansingburg  v.  Crary,  1  Barb.,  542  (1847);  Warren  v.  Lee- 
land,  2  Barb.,  613  (1847);  Kingsley  v.  Holbrook,  45  N.  11.,  313  (1864); 
Mclntyre  v.  Barnard,  1  Sandf.  Ch.,  52  (1843);  Liford's  Case,  11  Co.,  46  b 
(1614);  .s.  c,  1  RoIIe,  95;  and  the  cases  therein  cited.  [See,  ante,  p. 
•248.     See,  however,  Potter  v.  Everett,  40  Mo.  App.,  152   (1890).] 

375 


•270  THE   LAW   OF   FIXTURES.  [CHAP.   VIII. 

[Where  trees  are  counted,  marked  and  sold  to  be  cut  and  removed,  a 
dotnl  oxoi'uted  by  the  seller  is  a  bill  of  sale  of  personalty;  and  an  express 
warranty  of  title  therein  is  personal  merely  and  not  a  covenant  running 
with  the  trees  to  a  sub-buyer.  Asher  Lumber  Co.  v.  Cornett,  22  Ky.  Law 
K.,  569,  570    (1900).] 

In  Warren  v.  Leeland  (supra),  it  is  stated  that  simultaneously  with  the 
execution  and  delivery  of  the  conveyance,  the  trees  are  severed,  in  the  law, 
from  the  earth,  and  become  chattels  personal ;  and  the  interest  which  passes 
is  not  a  freehold  estate,  but  an  interest  in  perpetuity  in  personal  estate; 
and  the  doctrine  is  thence  deduced,  that  a  contract  of  sale  or  conveyance 
of  growing  trees  is,  therefore,  not  within  the  recording  act  and  need  not 
be  recorded  in  order  to  protect  it  against  a  subsequent  bona  fide  purchaser, 
without  notice,  of  the  land  on  w-hich  the  timber  stands;  and  hence  where 
the  owner  of  land  sells  the  trees  growing  thereon  and  afterwards  conveys 
the  land  without  any  exception  or  reservation,  the  title  to  the  trees  will  not 
pass.  In  this  case,  however,  the  subsequent  purchaser  of  the  land  had 
notice  of  the  existence  of  the  previous  sale  of  the  timber,  before  he  received 
his  deed.  And  in  the  subsequent  and  well  considered  case  of  Vorebeck  v. 
Eoe,  50  Barb.,  302  (1867),  where  the  question  arose  directly,  a  contrary 
decision  was  made,  so  that  the  rule  above  stated  in  Warren  v.  Leeland  is 
believed  not  to  be  the  law.  See,  also,  Byassee  v.  Reese,  4  Met.  (Ky.), 
372  (1863);  Goodyear  v.  Vosburg,  57  Barb.,  246  (1869);  Gardiner  Manf'g 
Co.  V.  Heald,  5  Me.,  381   (1828);  Wescott  v.  Delano,  20  Wis.',  514   (1866). 

[A  landowner  by  sealed  contract  sold  the  standing  wood  thereon,  with 
two  years  in  which  to  remove  same.  The  landowner  then  conveyed  the  land 
to  one  with  knowledge  of  the  contract.  Held,  that  this  contract  was  a 
license,  and  revoked  by  the  conveyance,  the  grantee  being  entitled  to  the 
trees  upon  the  land.    Fish  v.  Capwell,  18  E.  I.,  667,  672  (1894).] 

A  notice  to  the  grantee  of  land  on  which  is  standing  timber  sold  to 
another,  that  such  timber  belongs  to  such  third  person,  is  said  to  be  as 
effectual  as  an  exception  in  a  deed.  Safford  v.  Annis,  7  Me.,  168  (1830). 
[See  Kendall  v.  Porter  Lumber  Co.,  69  Ark.,  442,  447  (1901)  ;  Lockeshan 
V.  Miller,  16  Ky.  Law  E.,  55  (Super.,  1894)  ;  Eussell  v.  Myers,  32  Mich., 
522,  523  (1875);  Johnson  v.  Moore,  28  Mich.,  3,  7  (1873);  Sanford  v. 
Eastabutchie  Lumber  Co.,  36  So.,  10,  11  (Miss.,  1904);  O'Hanlon  v. 
Murdock  [1901]  1  I.  E.,  122,  128.  Actual  and  open  possession  of  land 
by  a  grantee  of  the  trees  thereon  under  an  unrecorded  deed,  is  notice  to  a 
subsequent  purchaser  of  the  land  as  to  the  ownership  of  the  trees.  Bol- 
land  V.  O'Neal,  81  Minn.,  15,  18  (1900).  Where  a  sale  of  standing  timber 
is  made  through  an  agent  of  the  owner  of  the  land,  a  subsequent  purchase 
of  such  land  by  the  agent  is  an  affirmance  of  the  sale  of  the  timber. 
Jenkins  v.  Lykes,  19  Fla.,  148,  160  (1882).]  See,  however,  Brown  v. 
Dodge,  32  Me.,  167  (1850).  [Andrews  v.  Costigan,  30  Mo.  App.,  29 
(1888).] 

[An  owner  of  land  who  had  agreed,  by  an  unsealed  contract,  to  sell 
the  timber  thereon,  conveyed  the  land,  giving  oral  notice  to  the  grantee, 
of  the  outstanding  right  to  the  timber.     Held,  that  the  conveyance  without 

376 


CHAP.   Vm.]  EMBLEMENTS,   ETC.  *270 

a  reservation  in  the  deed,  was  a  revocation  of  the  contract,  and  that,  as 
no  action  would  lie  by  the  buyer  of  the  timber  against  the  grantee,  the 
buyer  could  recover  from  the  grantor  for  breach  of  contract.  Emerson 
V.  Shores,  95  Me.,  237    (1901).] 

[Where  a  contract  for  the  sale  of  land  reserves  growing  timber  to  the 
grantor,  but  the  subsequent  deed  contains  no  reservation,  the  timber  passes 
to  the  grantee.    Clifton  v.  Jackson  Iron  Co.,  74  Mich.,  183  (1889).]     ' 


377 


[•271]  CHAPTER  IX. 

OF  THE  TRANSFER  OF  FIXTURES  BY  CONVEYANCE, 

MORTGAGE,  DEVISE,  IN  CASE  OF  BANKRUPTCY, 

ETC.;  AND  HEREIN  OF  REGISTRATION,  THE 

STATUTE  OF  FRAUDS,  ETC. 

As  was  stated  in  a  preceding  chapter,^  it  is  well  settled  that 
the  rule  quicquid  plantatur  solo,  solo  cedit,  is  applied  with 
greater  rigor  in  favor  of  the  inheritance,  as  between  executor 
and  heir,  than  in  the  relations  of  landlord  and  tenant,  and 
tenant  for  life  or  in  tail  and  remainderman  or  reversioner. 
It  is  also  equally  well  settled,  that  in  the  absence  of  evidence 
of  specific  intention  varying  the  rights  of  the  parties,  the  same 
strict  rule  which  prevails  between  heir  and  executor,  prevails 
also  between  the  grantor  and  grantee  and  mortgagor  and  mort- 
gagee of  the  land.2 

1  Chap.  6,  p.  *209. 

2  21  H.  7,  26  b  (1506);  Preston  v.  Briggs,  16  Vt.,  128  (1844);  Miller  v. 
Plumb,  6  Cow.,  665  (1827);  Holmes  v.  Tremper,  20  John.,  30  (1822); 
Laflin  v.  Griffiths,  35  Barb.,  58  (1860) ;  Snedeker  v.  Warring,  12  N.  Y., 
174  (1854)  ;  Murdock  v,  Gifford,  18  N.  Y.,  31  (1858)  ;  Tate  v.  Blackburne, 
48  Miss.,  1,  9  (1873)  ;  Sands  v.  Pfeiffer,  10  Cal.,  258  (1858)  ;  Despatch 
Line  of  Packets  v.  Bellamy  Manf'g  Co.,  12  N.  H.,  205  (1841);  Burnside 
V.  Twitchell,  43  N.  H.,  393  (1861)  ;  Lathrop  v.  Blake,  23  N.  H.,  64  (1851) ; 
Johnson  v.  "Wiseman,  4  Met.  (Ky.),  359  (1863);  Robinson  v,  Preswick, 
3  Edw.  Ch.,  246  (1838);  Crane  v.  Brigham,  11  N.  J.  Eq.,  29  (1855); 
Childress  v.  Wright,  2  Cold.,  352  (1865)  ;  DeGraffenreid  v.  Scruggs,  4 
Humph.,  451  (1844).  [Hereford  v.  Pusch,  68  Pac.  547  (Ariz.,  1902); 
Adams  v.  Beadle,  47  Iowa,  439,  441  (1877);  Thomas  v.  Davis,  76  Mo., 
72,  76  (1882);  Home  v.  Smith,  105  N.  C,  322,  325  (1890);  Wilson  v. 
Steel,  13  Phila.,  153  (1879)  ;  William  Firth  Co.  v.  South  Carolina  Loan 
Co.,  122  Fed.,  569  (U.  S.  C.  C.  A.,  S.  C,  1903)  ;  see,  also,  McCrillis  v.  Cole, 
55  Atl.,  196,   197    (R.  L,  1903).] 

So,  it  seems,  whether  the  mortgagee  is  in  or  out  of  possession,  Laflin  v. 
Griffiths  (supra).     [See,  post,  p.  *287.] 

[At  common  law,  what  is  accessory  to  real  estate  passes  with  it  by 
alienation.     As  between  vendor  and  vendee  the  rule  for  determining  what 

378 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *271 

is  a  fixture  is  always  construed  strongly  against  the  vendor.  Many  things 
pass  by  deed,  although  annexed  for  purposes  of  trade,  manufacture,  or 
for  ornament  or  domestic  use,  and  which,  if  annexed  by  a  tenant,  might  be 
removed.  Fratt  v.  Whittier,  58  Cal.,  126,  130  (1881).  The  law  leans  to 
the   vendee.     Hill  v.   Mundy,   89  Ky.,   36,   38    (1889).] 

[Insurance. — A  policy  insuring  a  building  covers  an  awning  or  shed 
erected  on  posts  set  in  the  ground,  with  rafters  extending  into  the  brick 
wall  of  the  building,  and  covered  with  plank.  Commercial  Ins.  Co.  v. 
Allen,  80  Ala.,  571,  578  (1886)  ;  so,  as  to  a  furnace  weighing  one  thousand, 
five  hundred  pounds,  standing  upon  a  brick  foundation  specially  pre- 
pared for  it  in  a  cellar,  and  a  boiler  attached  to  pipes  for  conveying  hot- 
water  to  the  rooms  in  the  house.  West  v.  Farmers'  Mut.  Ins.  Co.,  117 
Iowa,  147  (1902);  so,  as  to  a  heater  bricked  in.  Adams  v.  Greenwich  Ins. 
Co.,  16  Supr.  Ct.  (9  Hun),  45,  49  (N.  Y.,  1876)  ;  so,  as  to  altars  in  a 
church.  Caraher  v.  Koyal  Ins.  Co.,  70  Supr.  Ct.  (63  Hun),  82,  96  (N.  Y., 
1892)  ;  so,  as  to  a  boiler,  elevator  machinery,  steam  piping,  radiators,  iron 
tanks,  gas-piping  and  speaking-tube.  Thurston  v.  Union  Ins.  Co.,  17 
Fed.,  127,  129  (U.  S.  C.  C,  N.  H.,  1883)  ;  so,  as  to  engine,  boiler,  smoke- 
Btack,  shafting,  gearing,  belting  and  fixed  and  movable  machinery.  Carr 
V.  Fire  Assurance  Ass'n,  14  Ont.,  487  (1887).  See,  also,  Brugger  v.  State 
Ins.  Co.,  5  Sawy.,  304  (U.  S.  C.  C,  Ore.,  1879),  that  a  policy  of  insurance 
of  a  mill-building,  where  the  amount  is  much  more  than  the  value  of 
the  building,  covers  the  machinery.  In  British  Am.  Assurance  Co.  v. 
Bradford,  60  Kan.,  82  (1898),  mill  machinery  was  held  to  be  a  part  of  the 
realty   within  the  "valued-insurance-policy"   law.] 

[Insurance  upon  a  building  covers  fixtures  therein,  although  fixtures  have 
been  the  subject  of  another  policy  of  insurance.  Niagara  Ins.  Co.  v. 
Heenan,  181   111.,  575    (1899).] 

[A  one-story  brick,  metal-roof  warehouse,  erected  by  a  tenant  under 
an  agreement  that  it  shall  remain  his  property,  is  real  property,  making 
the  insurer  liable  for  the  full  amount  in  case  of  total  loss.  Orient  Ins. 
Co.  V.  Parlin-Orendorff  Co.,  14  Tex.  Civ.  App.,  512  (1896).  Insurance  upon 
flour-mill  machinery  is  insurance  of  real  property.  Havens  v.  Germania  Ins. 
Co.,  123  Mo.,  40.3,  419  (1894).] 

[A  boiler  covered  by  a  brick  wall  and  an  engine,  all  fixed  upon  a 
foundation  for  permanent  use  in  a  building,  is  a  "structure"  within 
§  3643  of  the  Revised  Statutes,  requiring  the  insurer  to  pay  the  full  insured 
value  of  the  property.  Insurance  Co.  v.  Luce,  11  Ohio  Cire.  Ct.,  476 
(1896).] 

[A  policy  of  inHuratir-o  provided  thnt  the  company  should  not  be  liable 
for  "store  or  office  furniture  or  fixtures,"  and  the  property  insured  was 
described  as  a  "building,  including  gas,  steam  and  water  pipes,  and  all 
other  pf-rmancnt  fixtures."  Held,  not  to  cover  counters,  shelving  and 
fixtures  not  built  into  the  building,  and  easily  removed.  Banyer  v.  Albany 
Ins.  Co.,  85  App.  Div.,  122   (N.  Y.,  1903).] 

[Eminent  Domain.— Tn  condemnation  proceedings  the  same  strict  rule 
prevails  as  between   grantor   and   grantee.     White  v.   Cincinnati  R.   &   M. 

379 


•271  THE  LAW  OF  FIXTURES.  [CHAP.    IX. 

t 

Questions  as  to  fixtures,  arising  on  a  partition  between  own- 
ers of  the  fee  being  tenants  in  common,  are  also  to  be  decided 
on  the  same  principle,  as  if  arising  between  grantor  and  grantee, 
or,  as  if  the  partition  had  been  effected  by  mutual  deeds  of 
bargain  and  sale.^ 


'  e>* 


E.  R.,  71  N.  E.,  276  (Ind.  App.,  1904) ;  Ee  Mayor  of  New  York,  39  App. 
Div.,  589,  595    (N.  Y.,   1899).] 

[In  condemnation  proceedings,  buildings,  improvements,  and  structures 
upon  the  land  condemned,  pass  with  it.  Stauffer  v.  Cincinnati,  R.  &  M. 
R.  R.  Co.,  70  N.  E.,  543,  544  (Ind.  App.,  1904)  ;  Chicago,  I.  &  K.  R.  R.  Co. 
V.  Knuffiie,  36  Kan.,  367  (1887)  ;  Williams  v.  Commonwealth,  168  Mass., 
364,  366  (1897);  Kansas  City  v.  Morse,  105  Mo.,  510,  519  (1891);  Schu- 
chardt  v.  Mayor  of  New  York,  53  N.  Y.,  202,  210  (1873)  ;  Finn  v.  Provi- 
dence Water  Co.,  99  Pa.  St.,  631   (1882).] 

[A  bay-window  is  a  part  of  the  realty  in  condemnation  proceedings. 
Williams  v.  Commonwealth,  168  Mass.,  364,  366  (1897);  so,  as  to  a  corn- 
crib.  Mississippi  River  Co.  v.  Ring,  58  Mo.,  491,  496  (1874)  ;  so,  as  to  saw- 
mill machinery.  Lefebvre  v.  Queen,  1  Exch.,  121,  132  (Can.,  1884)  ;  so, 
as  to  a  roadbed.  VanHusen  v.  Omaha  B.  &  T.  R'y  Co.,  118  Iowa,  366, 
382  (1902).  Machinery  must  be  paid  for,  although  removable  without 
injury.  White  v.  Cincinnati,  R.  &  M.  R.  R.,  71  N.  E.,  276  (Ind.  App., 
1904).] 

{Jurisdiction. — A  fence  is  a  part  of  the  realty,  and  not  within  the 
jurisdiction  of  a  justice  of  the  peace  in  an  action  ex  delicto  for  its  de- 
struction.   Bagley  v.  Columbus  So.  R'y  Co.,  98  Ga.,  626,  627  (1896).] 

3  Walker  v.  Sherman,  20  Wend.,  636  (1839);  Baldwin  v.  Breed,  16 
Conn.,  66  (1843),  See,  also,  Plumer  v.  Plumer,  30  N.  H.,  569  (1855); 
Parsons  v.  Copeland,  38  Me.,  537  (1854),  [See  Siting  v,  Palen,  14  N.  Y. 
Supp.,   607    (1891).] 

But  a  dye-house  without  a  cellar  (near  a  woolen  factory),  having  in  it  a 
copper  kettle,  iron  kettle,  washers,  fulling  stocks,  press  and  shafting,  and 
a  dry-house  standing  on  blocks,  together  with  a  wood-house,  erected  upon 
the  common  property  by  one  of  the  tenants  in  common  in  possession  for  his 
own  use,  after  a  co-tenant  has  filed  his  petition  for  a  partition,  from  the 
character  of  the  buildings,  mode  of  attachment  and  use  for  which  designed, 
and  in  the  absence  of  evidence  that  they  were  placed  there  against  the  eon- 
sent  of  the  petitioner,  may  well  be  presumed  to  have  been  erected  right- 
fully, and  do  not  become  the  property  of  the  tenants  in  common,  and  hence 
should  not  be  appraised  by  the  commissioners  in  estimating  the  value  of 
the  entire  property,  thereby  giving  to  the  petitioner  a  share  of  their 
value.     Parsons  v.  Copeland   (supra). 

[In  Madison  v.  Madison,  206  111.,  534,  538  (1904),  the  second  and 
third  stories  of  a  brick  opera  house  were  held,  in  a  partition  suit,  to  be 
real   estate.] 

[Where,  after  a  sale  of  real  estate  in  a  partition  suit,  and  before  deliv- 

380 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *272 

*It  is  also  well  settled  that  the  right  to  remove  fix-  [*272] 
tures  annexed  to  real  estate  by  one  in  possession  thereof  under 
a  contract  for  its  purchase  without  paying  rent  therefor,  is  to 
be  determined  by  the  rule  prevailing  between  grantor  and 
grantee,  or  mortgagor  and  mortgagee,  and  not  that  between  land- 
lord and  tenant.  Fixtures  erected  under  such  circumstances 
may,  as  against  the  vendor  of  the  land,  neither  be  removed  by 
the  vendee,  mortgaged  or  sold  by  him,  nor  seized  and  sold  on 
fi.  fa.  against  him  as  his  personal  property.'*     And  the  rule  is 

ery  of  the  deed,  one  tenant  in  common  removed  property  that  is  a  part 
of  the  real  estate,  it  is  incumbent  upon  the  court  to  see  that  the  pur- 
chaser receives  all  that  he  paid  for,  or  withhold  from  the  party  doing  the 
injury,  a  suflScient  amount  of  the  purchase  money  in  its  hands  to  compen- 
sate the  purchaser.     Oliver  v.  Lansing,  59  Neb.,   219,   226    (1899).] 

4  See  McLaughlin  v.  Nash,  14  Allen,  136   (1867),  where  it  was  held  that 
a  trip-hammer  firmly  attached  to  a  block  set  in  the  ground,  the  blower  of 
the  forge,  set  on  the  floor  and  fastened  by  bolts,  a  force-pump  fastened  by 
screws  to  the  side  of  the  building  and  operated  by  the  engine,  and  shafting 
fastened  to  the  building  by  screws  and  bolts,  annexed   by   the  purchaser 
and  specially  adapted  to  be  used  in  connection  with  the  freehold,  could  not 
be  severed  without  the  consent  of  the  holder  of  the  legal  title;   but  that 
a  steam-engine  and  boiler,  portable  and  in  their  own   frames,  a  planing- 
machine  and  anvils  resting  on  the  floor  or  ground  and  not  fastened,  vices 
merely  annexed  to  a  work-bench  by  screws  and  bolts,  a  grind-stone  on  a 
movable  frame  and  an  emery-machine  set  on  the  floor  and  fastened  with 
bolts,  but  more  connected  with  the  engine  and  boiler  which  were  not  fixtures 
than  with  any  articles  which  were,  and  capable  of  removal  without  material 
injury   to   the   realty   and   of   being   used   elsewhere,    had   never   lost   their 
character  of  chattels  and  might  be  removed ;  Hemenway  v.  Cutler,  51  Me., 
407    (1863);    Poor  v,   Oakman,   1D4   Mass.,   309    (1870);    Oakman   v.   Dor- 
chester   Ins.    Co.,   98    Mass.,    57    (1867)  ;    King   v.    Johnson,    7    Gray,    239 
(1856);   Milton  v.  Colby,  5  Met.,  78    (1842);   Eastman  v.  Foster,  8  Met., 
19    (1844);    Murphy   v.   Marland,   8   Cush.,   575;    Ogden   v.   Stock,   34   111., 
522   (1864);   Dooley  v.  Crist,  25  111.,  551    (1861);   Christian  v.  Dripps,  28 
Ponn.  St.,  271   (1857);  English  v.  Foote,  16  Miss.,  444   (1847);  Perkins  v. 
Swank,   43   Miss.,   349    (1871).      See,   also.   Smith   v.   Altick,   24   Ohio   St., 
369   (1873);   Tabor  v.  Robinson,  36  Barb.,  483    (1862).      [Miller  v.  Wad- 
dingham,   11   L.  R.  A.,  510   (Cal.,   1891);   Gundcrson  v.  Kennedy,   104   111. 
App.,   117    (1902);   Central  Branch  R.  R.  Co.  v.  Fritz,   20  Kan.,  430,  437 
(1878);  Ilinkley  Iron  Co.  v.  Black,  70  Me.,  473   (1880);  Skillin  v.  Moore, 
79  Me.,  554  (1887);  Tyler  v.  Fickett,  75  Me.,  211,  213   (1883);  Westgate 
v.  Wixon,  128  Mass.,-  304   (1880);   Smith  Paper  Co.  v.  Servin,   130  Mass., 
.Ml,  516  (1881)  ;  Ali.liigan  Mut.  Ins.  Co.  v.  Cronk,  93  Mich.,  49.  51   (1892)  ; 
Hannibal  &  St.  Jo.  R.  R.  Co.  v.  Crawford,  68  Mo.,  80,  82  (1878);   McFad- 
den  V.  Allen,  134  N.  Y.,  489,  490   (1888),  aff 'g  57  Supr.  Ct.   (50  Hun), 

381 


•272  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

oOl  (.1S88);  Aiulrews  v.  Powers,  GG  App.  Div.,  L'lG  (N.  Y.,  1901);  Chand- 
ler V,  Hamell,  57  App.  Div.,  305  (N.  Y.,  1901);  Church  v.  Lapham,  94 
App.  Div.,  550  (x\.  Y.,  1904);  Moore  v.  Valentine,  77  N.  C,  188  (1877); 
Clark  V.  MoKnight,  25  Tex.  Civ.  App.,  60,  62  (1901);  Shelton  v.  Willis, 
23  Tex.  Civ.  App.,  547,  550  (1900) ;  Suodgrass  v.  Posey,  30  Tex.  Civ.  App., 
584  (1902);  Pattou  v.  Moore,  16  W.  Va.,  428,  442  (1880);  Taylor  v.  Col- 
lins, 51  Wis.,  123  (1S81);  Cleaver  v.  Culloden,  j..  Up.  Can.  Q.  B.,  582, 
584;  Gasco  v.  Marshall,  7  Up.  Can.  Q.  B.,  193,  196;  Doran  v.  Willard, 
14  N.  B.,  358  (1873)  ;  Eeynolds  v.  Dechman,  2  Nova  S.  L.  E.,  459  (1881) ; 
see,  also,  Newland  v.  Baker,  26  Kan.,  341,  344  (1881);  Cutter  v.  Wait, 
91  N.  W.,  753  (Mich.,  1902);  Wagar  v.  Briscoe,  38  Mich.,  587  (1878); 
Harris  v.  Hitt,  58  Mo.  App.,  459  (1894);  McCrillis  v.  Cole,  55  Atl.,  196 
(R.  I.,  1903);  Seatoff  v.  Anderson,  28  Wis.,  212,  215  (1871);  First  Nat. 
Bank  of  Austin  v.  Jackson,  40  S.  W.,  833,  834  (Tex.  Civ.  App.,  1897).] 

[Where,  under  a  contract  of  sale  of  a  lot,  the  vendee  erects  a  house, 
and,  subsequently,  upon  cancellation  of  his  notes,  he  agrees  to  surrender 
possession  and  pay  rent,  he  can  not  remove  the  house.  Crum  v.  Hill,  40 
Iowa,  506  (1875).  The  decision  indicates  that  the  subsequent  transaction 
was  a  sale  by  the  builder  of  the  house,  rather  than  that  the  house  was  a 
fixture.     The  house  was   small,   and  rested  upon  posts.] 

[Where  a  contract  of  sale  of  a  mining-claim  provided  that  upon  failure 
of  the  vendee  to  carry  out  the  agreement,  improvements  made  upon  the 
property  should  become  the  property  of  the  vendor,  the  word  "improve- 
ments" is  very  comprehensive,  and  does  not  refer  to  the  shaft  and  drifts, 
but  to  all  betterments  which,  in  the  absence  of  such  agreement,  would  be 
removable.     Smith  v.  Detroit  Min.  Co.,  97  N.  W.,  17,  19   (S.  D.,  1903).] 

[Where  the  parties  to  a  contract  of  sale,  after  a  dispute  as  to  whether 
an  engine  and  machinery  upon  the  property  are  fixtures,  mutually  consent 
to  a  severance  and  sale  thereof  to  preserve  them  from  exposure,  their 
rights  are  not  in  any  way  affected.  Moore  v.  Valentine,  77  N.  C,  188, 
192  (1877).] 

[That  the  grantor  knew  of  improvements,  making  no  objection,  does 
not  affect  his  rights,  as  he  has  a  right  to  suppose  that  the  conditions  of  the 
sale  would  be  fulfilled,  and  there  is  no  duty  resting  upon  him  to  make 
any  objection.  On  the  other  hand  the  purchaser  must  have  contemplated 
the  completion  of  his  contract,  and  have  intended  them  to  be  a  part  of  tlie 
freehold.     Lapham  v.  Norton,  71  Me.,  83,  85  (1880).] 

[An  assertion  by  the  land-owner  that  he  would  not  release  the  building 
until  damages  for  injury  to  the  lot  should  be  paid  him,  is  not  a  disclaimer 
of  ownership.     Dustin  v.  Crosby,  75  Me.,  75,  78   (1883).] 

[Where  a  house  which  has  been  built  upon  a  lot  which  the  builder  is 
under  contract  to  purchase,  is  moved  to  another  lot  by  an  assignee  of  the 
contract,  and  a  deed  to  the  latter  lot  "together  with  all  the  houses,"  etc., 
is  afterwards  given  by  the  vendor  to  such  assignee,  the  right  of  action 
by  the  vendor  for  damages  for  the  conversion  of  the  house  by  the  assignee 
is  not  affected.  Cleaver  v.  Culloden,  15  Up.  Can.,  Q.  B.,  582;  14  Up.  Can., 
Q.  B.,  491.] 

382 


CHAP.   IX.]  GRANTOR    AXD    GRANTEE,    ETC.  *272 

[The  rule  is  the  same  as  to  fixtures  already  upon  the  place  which  are 
owned  by  the  vendee  at  the  time  of  making  the  contract.  Seiberling  v. 
Miller,  207  111.,  443,  448  (1904),  aff 'g  106  111.  App.,  190,  193  (1902).  But 
where  a  tenant,  with  the  consent  of  the  landlord,  moves  a  frame  house, 
valued  at  three  hundred  dollars,  upon  the  leased  lot,  which  he  has  a 
right  to  remove,  and  about  a  month  later  the  landlord  makes  a  contract  of 
Bale  of  the  lot  to  the  tenant  for  two  hundred  and  fifty  dollars,  it  can  not 
be  assumed  that  the  sale  included  the  house,  and  the  right  of  removal  is 
not  affected.     McDonald  v.   Shepard,   25   Kan.,   112,   115    (1881).] 

[A  deed  of  an  undivided  one-half  of  a  homestead  was  executed  by  the 
owners  and  their  wives,  to  be  delivered  when  the  purchase  money  was 
paid.  The  grantees  and  the  husbands  then  entered  into  a  partnership,  in 
pursuance  of  which  certain  machinery  was  attached  to  the  land.  After- 
wards, the  purchase-money  not  having  been  paid,  the  conveyance  was  vol- 
untarily rescinded,  and  the  partnership  dissolved,  the  husbands  giving  a 
chattel  mortgage  upon  the  machinery  for  the  balance  due  upon  settle- 
ment of  partnership  accounts.  Held,  that,  as  against  the  wives,  the  ma- 
chinery attached  by  such  grantees  could  not  be  removed  from  the  home- 
stead.    Phelan  v.  Boyd,  14  S.  W.,  290    (Tex.,  1890).] 

[The  vendor's  claim  to  buildings  is  superior  to  a  mechanics'  lien.  Davis 
V.  ElHctt,  7  Ind.  App.,  246  (1893);  Dustin  v.  Crosby,  75  Me.,  75,  77 
(1883);  Galveston  Exhib.  Ass'n  v.  Perkins,  80  Tex.,  62,  67   (1891).] 

[Where  land  is  conveyed  which  is  to  revert  to  the  grantor  upon  certain 
conditions,  and  there  is  re-entry  for  condition  broken,  a  church  edifice, 
which  has  been  erected  upon  the  land,  passes  with  it.  Union  Church  v. 
Gaylord,  1  Ky.  L.  K.,  403  (1880).  See,  also.  Gulf,  C.  &  S,  E'y  Co.  v.  Dun- 
man,  35  S.  W.,  947  (Tex.  Civ.  App.,  1896),  33  S.  W.,  1024  (Tex.  Civ. 
App.,  1896),  as  to  a  pump,  etc.;  and  Carr  v.  Georgia  E.  E.,  74  Ga.,  73, 
81  (1884),  as  to  a  brick  depot.  In  the  last  case  it  was  held  that  even 
though  it  might  be  admitted  that  the  company  had  the  right  to  remove  the 
depot  before  abandoning  possession,  it  became  a  trespasser  by  removing  it 
afterwards;  and  as  the  grant  was  with  a  provision  that,  upon  ceasing  to 
use  the  land  and  building  to  be  erected  thereon  as  a  depot,  the  land  should 
revert  to  the  grantor,  on  abandonment  by  the  grantee  the  law  cast  the 
title  upon  the  grantor,  and,  it  being  vacant,  was  in  his  possession,  and 
no  entry  was  necessary.  Sec,  as  to  a  tollhouse,  Montgomery  County  v. 
Bean,  82  S.  W.,  240,  241  (Ky.,  Sept.  28,  1904).] 

[A  "box  house,"  not  attached  in  any  way  except  by  its  own  weight, 
is  removable  by  the  vendee.  Brannon  v.  Vaughn,  66  Ark.,  87  (1898); 
80,  as  to  a  house  resting  upon  posts.  Central  Branch  E.  E.  Co.  v.  Fritz, 
20  Kan.,  430,  437  (1878)  ;  so,  as  to  a  large  cooking  range  though  fastened 
to  the  floor.  John  Van  Eange  Co.  v.  Allen,  7  So.,  499  (Miss.,  1890).  A 
purchaser,  from  the  vendee,  of  a  portable  furnace  and  gas-fixtures,  espe- 
cially if  the  purchaser  has  removed  them,  is  protected.  Towne  v.  Fiskc, 
127  Mass.,  125  (1879).  Likewise,  a  saw-mill  is  not  a  part  of  the  realty 
between  a  chattel  mortgagee  thereof,  and  the  vendor  of  the  land.  Burrill 
V.  Wilcox  Lumber  Co.,  65  Mich.,  571,  575  (1887).] 

383 


*272  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

[If  Olio  aiuiexing  an  engine  to  land,  has  a  comlitional  contract  of  pur- 
chase thereof,  as  that  he  might  abanJou  the  contract  if  the  land  was  not 
satisfactory  for  mining  purposes,  his  right  of  removal  would  have  been 
the  same  as  that  of  a  lessee,  as  the  presumption  would  be  that  the  inten- 
tion was  that  the  annexation  was  temporary  and  not  permanent.  Moore 
V.  Valentine,  77  N.  C,  188,  190.] 

[Where  land  was  deeded  to  a  railway  company  upon  conditions  which 
were  not  performed,  the  right  of  the  grantor,  upon  recovering  his  land, 
to  the  structures  (a  steam-pump,  boiler,  iron  pipe,  etc.)  erected  by  the 
railway  company,  will  depend  upon  whether  or  not  there  has  been  a  per- 
manent annexation.  Gulf,  &c.,  E'y  Co.  v.  Dunman,  85  Tex.,  176,  182 
(1892).] 

[Where  a  person,  who  has  dealt  with  the  vendee  as  owner  of  the  land, 
and  who  has  notice  of  a  chattel  mortgage  on  a  building  on  such  land, 
given  by  the  vendee,  subsequently  acquires  title  to  the  land,  his  rights  are 
subordinate  to  those  of  the  chattel  mortgagee.  Holt  County  Bank  v. 
Tootle,  25  Neb.,  408  (1889).] 

[Where  a  contract  of  sale  gives  the  grantor  the  right  of  forfeiture  in 
ease  of  default  in  the  payment  of  installments,  and  he  after  a  default 
sees  material  for  a  building  thereon  furnished  by  parties  who  believed 
that  another  party  owns  the  building,  the  grantor  will  be  estopped  to  claim 
the  building  as  against  such  material  men.  Bell  v.  Swallwell  Land  Co., 
20  Wash.,   602,   605    (1899).] 

[Of  course  if  the  grantor  refuses  or  is  unable  to  convey,  the  grantee 
has  a  reasonable  time  in  which  to  remove  his  improvements.  Lapham  v. 
Norton,  71  Me.,  83,  87  (1880)  ;  Hinkley  Iron  Co.  v.  Black,  70  Me.,  473, 
482    (1880);   Waters  v.  Eeuber,   16  Neb.,  99    (1884).] 

[Where  the  contract  of  purchase  was  induced  by  false  and  fraudulent 
representations  of  the  vendor,  the  vendee  has  the  right  to  place  himself 
in  statu  quo  by  removing  a  house  built  by  him  if  it  can  be  done  without 
injury  to  the  freehold  remaining.     Cutter  v.  Wait,  131  Mich.,  508  (1902).] 

[Where  annexations  are  made  by  one  in  possession  with  an  option  to  pur- 
chase, they  do  not  become  a  part  of  the  realty;  nor  does  an  election  to  pur- 
chase, and  a  forfeiture,  change  the  character  of  such  annexations  as  be- 
tween one  taking  a  chattel  mortgage  thereof  before  the  exercise  of  such 
option,  and  a  purchaser  of  the  real  estate  subject  to  such  option.  Alberson 
V.  Elk  Cr.  Min.  Co.,  39  Ore.,  552,  562  (1901).  See,  also,  as  to  options  to 
purchase,  Cook  v.  Enright,  134  Cal.,  1  (1901);  and  Pomeroy  v.  Bell,  118 
Cal.,  635  (1897).] 

The  opposing  case  of  Raymond  v.  White,  7  Cow.,  319  (1827),  seems 
contrary  to  the  clear  weight  of  authority.  See,  however,  Ross's  Appeal, 
9  Penn.  St.,  496  (1848).  [As  long  as  the  vendee  remains  in  possession, 
and  complies  with  his  contract,  he  has  a  right  to  remove  buildings  erected 
by  him,  which  his  contract  did  not  require  him  to  erect,  unless  the  vendor's 
security  is  thereby  impaired.  Miller  v.  Waddingham,  91  Cal.,  377,  382 
(1891);  Weed  v.  Hall,  101  Pa.  St.,  592,  596  (1882).  After  default  in 
payments,  but  before  the  grantor  forecloses  Ilia  contract,  the  grantee  haa 

384 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *273 

*the  same  notwithstanding  the  contract  contains  a  clause  [*273] 
that  upon  default  of  payment  the  vendee  is  to  be  considered  a 
tenant  at  will  of  the  vendor  at  a  specified  rent,  and  that  pay- 
ment is  to  be  a  condition  precedent  and  time  of  the  essence  of 
the  contract.^  According  to  the  better  opinion,  also,  it  seems 
that  the  rule  is  the  same  where  possession  is  taken,  and  the 
annexations  made  under  a  parol  agreement  for  the  purchase  of 
the  land,  though  there  is  some  conflict  of  authority  upon  the 
question.2 

a  perfect  right  to  dispose  of  a  house  built  by  him  under  the  contract. 
Xorthrup  v.  Trask,  39  Wis.,  515  (1876).  Improvements  made  by  a  home- 
stead entryman  upon  lauds  of  the  United  States,  are  no  part  of  the  realty. 
Crocker  v.  Donovan,  1  Okla.,  165  (1892).] 

1  Moore  V.  Smith,  26  111.,  392  (1861),  reversing  s.  c,  24  111.,  512. 

2  See  Hutchins  v.  Shaw,  6  Cush.,  58  (1850),  where  it  was  held,  that  a 
house  built  by  one  person  upon  the  land  and  partly  with  the  materials  of 
another,  under  a  verbal  agreement  that  upon  payment  of  a  specified  sum 
by  the  builder  for  the  land  and  materials  the  owner  should  give  him  a  deed 
of  the  laud,  is  not  the  personal  estate  of  the  builder,  but  the  real  estate 
of  the  owner  of  the  land.  [See  Kenerson  v.  Colgan,  164  Mass.,'  166 
(1895).] 

[Street  railway  track  laid  under  a  license  given  upon  assurance  that 
the  company  would  buy  the  land,  becomes  the  property  of  the  land- 
owner when  the  land  is  not  purchased,  and  the  operation  of  the  road  is 
abandoned.     Tudor  Iron  Works  v.  Hitt,  49  Mo.  App.,  472   (1892).] 

See,  also.  Christian  v.  Dripps,  28  Penn.  St.,  271  (1857).  In  this  case  two 
persons  were  engaged  as  partners  in  a  manufactory,  and  upon  a  third  per- 
son's being  taken  in  as  a  partner,  the  real  and  personal  estate  was  charged 
upon  the  books  of  the  firm  as  partnership  property  of  the  new  firm.  The 
real  estate  consisted  of  a  foundry  and  machine-shop  theretofore  sold  by 
articles  of  agreement  iiiniiiiig  from  the  plaintiff  to  the  two  partners  first 
mentioned,  the  legal  title  remaining  in  tlie  plaintifT.  The  incoming  partner 
put  in  certain  macliincry  with  which  he  was  credited.  Ilcld,  that,  all  being 
in  possession  as  owners  and  none  as  tenants,  and  the  machinery  being  the 
property  of  the  firm,  it  became  a  fixture  independent  of  the  actual  Owner- 
ship of  the  real  estate,  and  notwithstanding  the  title  of  the  third  ])artner 
to  the  real  estate  might  be  defective  for  want  of  compliance  with  the 
Statute  of  Frauds,   the   annexation   being   otherwise   sufTicicnt. 

[It  makes  no  difference  that  erections  were  by  a  firm,  while  the  interest 
in  the  land  was  owned  by  some  members  of  the  firm,  where  the  interest  was 
held  for  the  benefit  of  the  firm.  Hinkley  Iron  Co.  v.  Black,  70  Me.,  473, 
483   (1880).] 

The  true  reason  of  the  rule,  where  the  contract  is  in  writing,  seems  to  bo 
that  the  annexations  are  made  with  the  design  of  being  permanent.  See 
M<:nre  v.  Smitli,  26  111..  302  (1861).  And  this  reason  is  equally  applicable 
■-■■'    •  385 


*274  TPIE  L.VW  OP  FIXTURES.  [CHAP.   IX. 

[*274]  *Bet\veen  grantor  and  grantee,  and  mortgagor  and 
mortgagee,  however,  the  effort  of  a  court  is  always  to  ascertain 
the  intent  of  the  parties,  and  to  give  it  effect.  If  their  lan- 
guage affords  evidence  that  a  chattel  is  intended  to  pass,  it  will 
of  course  pass,  whether  it  be  a  mere  chattel  or  one  which  by 
annexation  has  become  part  of  the  realty.  But  where  no  specific 
intention  is  collectible,  or  where  the  conveyance  is  of  land  by 
metes  and  bounds,  and  on  the  land  a  building  stands  in  which 

to  the  case  of  a  parol  agreement  for  the  purchase  of  land,  in  the  absence  of 
any  agreement  as  to  the  ownership  of  the  thing  annexed. 

The  equitable  doctrine  of  part  performance  taking  the  case  out  of  the 
Statute  of  Frauds,  in  states  where  it  has  been  adopted,  may  possibly  have 
some  influence  upon  the  determination  of  the  question,  though  it  does  not 
as  yet  seem  to  have  been  considered  by  the  courts.  See  Adam 's  Eq.,  *86 
et  seq. 

The  cases  opposing  the  rule  stated  in  the  text  seem  to  make  the  fact  that 
the  erections  were  by  the  permission  of  the  owner  of  the  soil,  their  princi- 
pal if  not  sole  ground,  and  do  not  discuss  the  question  of  the  effect  of  an 
intention  to  make  the  annexation  a  permanent  accession  to  the  freehold. 
See  as  opposed  to  the  doctrine  of  the  text,  Pullen  v.  Bell,  40  Me.,  314 
(1855);  Eussell  v.  Eichards,  10  Me.,  429  (1833)  ;  s.  c,  11  Me.,  371. 

[See  Dustin  v.  Crosby,  75  Me.,  75,  78  (1883),  which  holds  that  Pullen  v. 
Bell,  40  Me.,  314,  is  erroneous.  See,  also,  Kingsley  v.  McFarland,  82  Me., 
231  (1889);  Lapham  v.  Norton,  71  Me.,  83,  85  (1880);  Bracelin  v.  Mc- 
Laren, 59  Mich.,  327,  328   (1886);  Long  v.  Finger,  74  N.  C,  502   (1876).] 

It  should  be  remarked  that  the  doctrine  of  part  performance  has  not 
been  adopted  in  Massachusetts  and  Maine.  Stearns  v.  Hubbard,  8  Me., 
320  (1832);  Wilton  v.  Harwood,  23  Me.,  131  (1843)  ;  Patterson  v.  Yeaton, 
47  Me.,  308  (1859) ;  Parker  v.  Parker,  1  Gray,  409  (1854)  ;  Brooks  v. 
Wheelock,  11  Pick.,  439   (1831). 

[Possession  was  taken  with  the  understanding  that  a  written  agreement 
was  to  be  -signed.  After  mining  machinery  was  attached  to  the  premises, 
the  land-owners  refused  to  sign.  Held,  that  the  machinery  could  be 
removed.     Goodwin   v.   Perkins,    134   Cal.,   564    (1901).] 

[Where  the  grantor  refuses  to  carry  out  a  parol  agreement  to  convey, 
the  grantee  is  entitled  to  the  value  of  his  improvements.  Treece  v.  Treece, 
73  Tenn.,  221,  223  (1880)  ;  but  the  grantee  can  not  bring  an  action  of 
assumpsit  for  his  improvements  as  long  as  he  is  in  possession.  Naft- 
zinger  v.  Roth,  93  Pa.  St.,  443,  448  (1880).  Where  one  makes  improve- 
ments under  a  parol  contract  for  the  purchase  of  land,  which  the  owner 
refuses  to  perform  and  denies,  and  directs  the  removal  of  the  improve- 
ments, such  party  can  obtain  no  compensation  for  his  improvements. 
McCracken  v.  McCracken,  88  N.  C,  272,  275   (1883).] 

386 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

is  the  tiling  in  controversy,  then  it  will  pass  or  not  according 
as  the  thing  is  or  is  not  in  law,  part  of  the  realty .^ 

The  questions  to  be  determined  then  in  every  instance  are, 
first,  whether  the  solution  of  the  question  is  affected  by  any 
specific  intention  appearing  in  the  instrument;  and  if  so,  what 
is  its  effect;  and  second,  if  no  such  specific  intention  appears, 
whether  the  article  in  controversy  is  or  not  in  law  part  of  the 
realty. 

I.  The  Question  as  Uninfluenced  by  any  Specific  Intention. 

The  general  rule  as  to  what  passes  with  the  land  being  the 
same  in  the  relations  of  grantor  and  grantee,  and  mortgagor 
and  mortgagee,  and  in  cases  of  partition  between  tenants  in 
common,  they  will  so  far  as  convenient  be  considered  together, 
leaving  the  eft'ect  of  a  specific  intention  and  certain  other  sub- 
jects properly  belonging  in  this  chapter,  to  be  hereinafter  con- 
sidered in  separate  sections. 

*The  general  rule  undoubtedly  is,  that  all  fixtures,  [*275] 
whether  actually  or  constructively^  annexed  to  the  realty,  pass  by 
a  conveyance  or  mortgage  of  the  freehold, ^  where  there  is  noth- 

iPer  Johnson,  C.  J.,  in  Murdock  v.  Gifford,  18  K  Y.,  28,  31  (1858). 
[See  ante,  p.  *42.] 

2  See  post  in  this  chapter;  also,  ante,  chap.  1,  p.  *33. 

3  E.  g.  Steam-engines,  boilers,  fire-grates,  etc.,  bolted  and  secured  on 
permanent  foundations,  or  laid  up  in  brick,  etc.  Eoberts  v.  Dauphin,  etc., 
Bank,  19  Penn.  St.,  71  (18.52);  Teafif  v.  Hewitt,  1  Ohio  St.,  511  (1853); 
Winslow  V.  Merchants'  Ins.  Co.,  4  Met.,  306  (1842);  Ovcs  v.  Ogelsby,  7 
Watts,  106  (1838);  Sands  v.  Pfeiffer,  10  Cal.,  258  (1858);  McKim  v.  Ken- 
nedy, 3  Md.  Ch.  Dec,  186  (1852)  ;  Ex  parte  Price,  2  Mont,  Dea.  &  DeG., 
518  (1842)  ;  s.  c,  11  L.  J.  (N.  S.),  Bank.,  27;  6  Jur.,  327;  Crane  v.  Brig- 
ham,  11  X.  J.  Eq.,  29  (1855)  ;  Rwootzer  v.  .Tones,  .35  Vt.,  317  (1862)  ;  Har- 
ris V.  Haines,  34  Vt.,  220  (1861)  ;  Climie  v.  Wood,  L.  R.,  3  Exch.,  257;  s.  C, 
L.  K.,  4  Exch.,  328  (1869);  Longbottom  v.  Berry,  L.  K.,  5  Q.  B.,  123 
(1869);  s.  c,  39  L.  J.  (N.  S.),  Q.  B.,  37,  45;  Ex  parte  Montgomery,  4 
Ir.  Ch.,  520  (1855);  Green  v.  PhillipH,  26  Gratt.,  752  (1875);  Bennett  v. 
Allen,  Sup'r  Ct.  of  Buffalo  (1857),  2  Clint.  N.  Y,  Dig.,  p.  1416,  pi.  48,  49; 
Powell  V.  Striker,  12  Law  Reporter,  366  (1849);  Allison  v.  McCune,  15 
Ohio  St.,  726  (1846);  Sparks  v.  The  State  Bank,  7  Blackf.,  469  (1845); 
Brennan  v.  Whitakcr,  15  Ohio  St.,  446  (1864)  ;  Quinby  v.  Manh:tttan  Cloth, 
etc.,  Co.,  24  N.  .T.  Eq.,  260  (1873),  [Fisk  v.  People's  Bank.  14  Colo. 
App.,  21  (1889);  Tolles  v.  Winton,  63  Conn.,  440  (1893);  Seiberling  v. 
Miller,   106   111.  App.,  190,  193   (1902),  aff'd  207  111.,  443   (1904);   Kloess 

387 


*275  TllK  LAW  OP  FIXTURES.  [CIIAP.    IX. 

V.  Katt,  40  Til.  App.,  99,  100  (1891);  Jcnncy  v.  Jackson,  6  111.  App.,  32 
(1880);  Otis  v.  May,  30  111.  App.,  581,  585  (1888);  Ottumwa  Mill  Co.  v. 
Hawley,  44  Iowa,  57  (187G);  A'e  Worland,  92  Fed.,  893,  895  (U.  S.  Dist. 
Ct.,  Iowa,  1S99);  Koynian  v.  Hcudersou  Nat.  Bank,  17  Ky.  L.  K.,  1291, 
1293  (.1896)  ;  New  Orleans  Banking  Co.  v.  Leeds,  49  La.  Ann.,  123  (1897)  ; 
Dudley  v.  Hurst,  67  Md.,  44  (1887);  Soutlibridge  Sav.  Bank  v.  Exeter 
Mach.  Works.  127  Mass.,  542,  545  (1879);  McConnell  v.  Blood,  123  Mass., 
47  (1877);  Coleman  v.  Stearns  Mfg.  Co.,  38  Mich.,  30  (1878);  Thomas  v. 
Davis,  76  Mo.,  72  (1882);  Davis  v.  Mugan,  56  Mo.  App.,  311  (1893); 
Dutro  V.  Kennedy,  9  ]\Iont.,  101  (1889);  Cavis  v.  Beckford,  62  N.  H.,  229 
(1882);  Langdon  v.  Buchanan,  62  N.  H.,  657,  659  (1883);  Tibbetts  v. 
Home,  65  N.  H.,  242  (1889)  ;  Atlantic  Trust  Co.  v.  Atlantic  City  Laundry 
Co.,  64  N.  J.  Eq.,  140,  146  (1902);  Eoddy  v.  Brick,  42  N.  J.  Eq.,  218 
(1886)  ;  Keeler  v.  Keeler,  31  N.  J.  Eq.,  181,  190  (1879)  ;  Watson  v.  Wat- 
son Mfg.  Co.,  30  N.  J.  Eq.,  483  (1879)  ;  Fish  v.  N.  Y.  Paper  Co.,  29  N.  J. 
Eq.,  16  (1878);  Doughty  v.  Owen,  19  Atl.,  540  (N.  J.  Ch.,  1890);  Lee  v. 
Hubsehmidt  BIdg.  Co.,  55  N.  J.  Eq.,  623,  624  (1897)  ;  Speiden  v.  Parker, 
46  N.  J.  Eq.,  292  (1889);  Seheifele  v.  Schmitz,  42  N.  J.  Eq.,  700,  701 
(1887);  Jackson  ads.  Turrell,  39  N.  J.  Law,  329,  330  (1877);  Berliner  v, 
Piqua  Club,  66  N.  Y.  Supp.,  791  (1900)  ;  Phoenix  Mills  v.  Miller,  17  N. 
Y.  Supp.,  158  (1891)  ;  Best  v.  Hardy,  123  N.  C,  226,  228  (1898) ;  Home 
v.  Smith,  105  N.  C,  322  (1890)  ;  Case  Mfg.  Co.  v.  Garver,  45  Ohio  St., 
289  (1887)  ;  Albert  v.  Uhrich,  180  Pa.  St.,  283  (1897)  ;  Jones  v.  Bull,  85 
Tex.,  136,  139  (1892);  Ice  Co.  v.  Lone  Star  Works,  15  Tex.  Civ.  App., 
694  (1897);  Homestead  Land  Co.  v.  Becker,  96  Wis.,  206,  211  (1897); 
Carr  v.  Fire  Assurance  Ass'n,  14  Ont.,  487  (1887);  Minhinnick  v.  Jolly, 
29  Ont.,  238,  246  (1898),  aff 'd  26  Ont.  App.,  42  (1899)  ;  London  Loan  Co, 
V.  Pulford,  8  Ont.  Pr.,  150  (1879)  ;  Stevens  v.  Barfoot,  13  Up.  Can.  App., 
366  (1886);  Oates  v.  Cameron,  7  Up.  Can.  Q.  B.,  228;  Dickson  v.  Hunter, 
29  Gr.  Ch.,  73,  86  (Out.,  1881);  Philion  v.  Bisson,  23  Low.  Can.  Jur.,  32 
(Super.,  1878);  Adamson  v.  Mcllvaine,  3  Man.,  29  (1885);  Cross  v. 
Barnes  (1877),  46  L.  J.  Q.  B.,  479;  Security  Tr.  Co.  v.  Temple  Co.,  58  At!., 
865  (N.  J.  Ch.,  1904).] 

So,  as  to  a  steam-engine,  weighing  five  tons,  which  could  not  be  removed 
without  taking  down  part  of  the  building,  but  not  attached  to  any  fasten- 
ing. Despatch  Line  v.  Bellamy  Manf'g  Co.,  12  N.  H.,  205  (1841).  See, 
however.  Park  v.  Baker,  7  Allen,  78  (1863),  where  an  ice-chest,  too  large 
to  be  removed  from  a  room  without  being  taken  to  pieces,  but  in  no  way 
affixed  to  the  building,  was  lidd  not  to  pass;   also  99  Mass.,  458. 

See,  also,  as  to  steam-engines  passing  with  the  land,  Gary  v.  Burguieres, 
12  La.  Ann.,  227  (1857)  ;  Code  of  La.  Arts.  455,  460.  [See,  post,  p.  *290. 
DeLacy  v.  Tillman,  83  Ala.,  155  (1887).]  See,  however,  Randolph  v. 
Gwynne,  7  N.  J.  Eq.,  88  (1848),  cited  post;  Wade  v.  Johnston,  25  Geo,, 
331  (1858).  [In  Hart  v,  Sheldon,  41  Supr,  Ct.  (34  Hun),  38  (N.  Y., 
1884),  a  steam-engine  of  six-horse  power,  standing  on  wheels,  not  annexed 
to  the  .soil,  placed  within  a  factory  to  run  the  machinery  therein,  the 
smoke-stack  passing  through  the  roof,  was  held  to  pass  with  the  realty, 
although  removable  without  injury.] 

388 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

[So,  as  to  a  gas  engine  bolted  to  a  concrete  foundation.  Hobson  v. 
Gorringe    [1897],   1    Ch.,    182,    192.] 

So,  as  to  lathes,  etc.,  fixed  in  a  permanent  manner.  Mather  v.  Fraser, 
2  Kay  &  John.,  536  (1856);  s.  c,  2  Jur.  (N.  S.),  900.  [New  Orleans 
Banking  Co.  v.  Leeds,  49  La.  Ann.,   123    (1897).] 

So,  as  to  steam  pumps  on  permanent  foundations.  Quinby  v.  Manhat- 
tan Cloth,  etc.,  Co.  (supra).  [Dudley  v.  Hurst,  67  Md.,  ii  (1887);  MeCon- 
nell  V.  Blood,  123  Mass.,  47  (1877);  Speiden  v.  Parker,  46  N.  J.  Eq.,  292 
(1889);  Sun  Assurance  Co.  v.  Taylor,  9  Man.,  89,  101   (1893).] 

So,  as  to  a  bathing-tub  and  lead  pipes  fastened  to  the  floor  and  walls  of 
a  dwelling  with  nails.     Cohen  v.  Kyler,  27  Mo.,  122   (1858). 

So,  of  furnaces  intimately  connected  with  the  house.  Main  v.  Schwarz- 
waelder,  4  E.  D.  Smith,  273  (1855)  ;  Mather  v.  Fraser,  2  Kay.  &  J.,  536 
(1856);  s.  c,  2  Jur.  (N.  S.),  900.  [Kennard  v.  Brough,  64  Ind.,  23 
(1878);  Eidgeway  Stove  Co.  v.  Way,  141  Mass.,  557  (1886);  Allen  v. 
Mooney,  130  Mass.,  155  (1881);  Pratt  v.  Baker,  99  Supr.  Ct.  (92  Hun), 
331  (N.  Y.,  1895);  Scottish  Am.  Co.  v.  Sexton,  26  Ont.,  77,  79   (1894).] 

[So,  as  to  a  range  with  boiler  attached  resting  upon  a  brick  foundation 
in  a  hotel;  tanks  and  filters  connected  by  pipes  with  the  city  water-mains; 
mosquito  transoms  and  window  screens  fitted  to  particular  windows,  and 
moving  in  grooves.  Fratt  v.  Whittier,  58  Cal.,  126,  132  (1881).  As  to 
stoves,  see,  ijost,  p.  *300.] 

So,  of  stills  and  kettles  set  in  brick-work.  Union  Bank  v.  Emerson, 
15  Mass.,  159  (1818);  Despatch  Line  v.  Bellamy  Manuf'g  Co.,  12  N.  H., 
205  (1841);  Noble  v.  Bosworth,  19  Pick.,  314  (1837);  Bryan  v.  Lawrence, 
5  Jones'  Law,  337  (1858).  [So,  as  to  a  mash-tub  connected  with  a  large 
shaft  in  the  center  of  it.  Scheifele  v.  Schmitz,  42  N.  J.  Eq.,  700,  701 
(1887)  ;  also  a  mash-tub  not  actually  affixed,  but  adapted  to  brewery,  and 
not  removable  without  taking  down  part  of  the  building.  INIanufacturers ' 
Nat.  Bank  v.  Eober,  19  N.  Y.  Wkly.  Dig.,  476,  477  (1884).  So,  as  to 
kettles  and  gasoline  pots  upon  foundations  in  a  canning  factory.  Dudley 
V.  Hurst,  67  Md.,  44   (1887).] 

Contra,  Hunt  v.  Mullanphy,  1  Mo.  (1st  ed.),  508  (1825),  where  the 
kettle  or  boiler  was  built  into  a  furnace  with  brick  and  mortar  so  as  to 
hide  it  except  the  mouth. 

So,  of  potash-kettles  used  in  the  business  of  an  ashery,  and  set  in  an 
arch  with  a  chimney,  the  arch  set  upon  a  platform,  but  not  fastened  to 
the  building.  Miller  v.  Plumb.,  6  Cow.,  665  (1827).  [So,  of  tar  tank  and 
kettles  fixed.  Knickerbocker  Tr.  Co.  v.  Penn  Cordage  Co.,  62  N.  J.  Eq., 
624  (1901).  See  Lavenson  v.  Standard  Soap  Co.,  80  Cal.,  245  (1889),  as 
to  soap  kettles.] 

So,  of  shafting,  suspended  by  iron  hangers  or  other  permanent  manner, 
gearing,  etc.  Longbottom  v.  Berry  (suina)  ;  Ackroyd  v.  Mitchell,  3  L.  T. 
(N.  S.),  236  (1860);  Corliss  v.  McLagin,  29  Me.,  115  (1848);  Bowen  v. 
Wood,  35  Ind.,  268  (1871);  Harris  v.  Haines,  34  Vt.,  220  (1861);  Hill  v. 
Wcntworth,  28  Vt.,  428  (1856);  Allison  v.  McCune  (.wpra)  ;  Harkncss  v. 
Sears,  26  Ala.,  493  (1855);  Quinby  v.  Manhattan  Cloth,  etc.,  Co.   (supra); 

389 


•275  THE  L.VW  OF  FIXTURES.  [CHAP.    IX. 

Mather  v.  Frascr  (supra)  ;  Ex  pnrfc  Wilson,  2  Mont,  and  Ayr.,  61  (1835); 
s.  c,  4  Doa.  &  Chit.,  143;  Ex  parte  Montgomery,  4  Ir.  Ch.,  520  (1855). 
See,  however,  Wade  v.  .Johnson,  25  Geo.,  331  (1858);  Farrar  v.  Chauffctete, 

5  Den.,  527  (1848).  [Seiberling  v.  Miller,  lOG  111.  App.,  190,  193  (1902), 
aff'd  207  111.,  443  (1904);  Mt-Connell  v.  Blood,  123  Mass.,  47  (1877); 
Langdou  v.  Buchanan,  (52  N.  IL,  057,  659  (1883);  Atlantic  Tr.  Co.  v. 
Atlantic  Cy.  Laundry  Co.,  64  N.  J.  Eq.,  140,  146  (1902);  Lee  v.  Hub- 
schmidt  Bldg.  Co.,  55  N.  J.  Eq.,  623,  624  (1897);  Eoddy  v.  Brick,  42 
K.  J.  Eq.,  218  (1886);  Delaware,  L.  &  W.  E.  R.  Co.  v.  Oxford  Iron  Co., 
36  N.  J.  Eq.,  452  (1883)  ;  Keeler  v.  Keeler,  31  N.  J.  Eq.,  181,  190  (1879)  ; 
Watson  V.  Watson  Mfg.  Co.,  30  N.  J.  Eq.,  483  (1879) ;  Doughty  v.  Owen, 
19  Atl.,  540  (N.  J.  Ch.,  1890)  ;  Phoenix  Mills  v.  Miller,  17  N.  Y.  Supp., 
158  (1891);  Best  v.  Hardy,  123  N.  C,  226,  228  (1898);  Homestead 
Land  Co.  v.  Becker,  96  Wis.,  206,  211  (1897)  ;  Carr  v.  Fire  Assurance  Ass'n, 
14  Ont.,  487;  Gooderham  v.  Denholm,  18  Up.  Can.  Q.  B.,  203  (1859); 
Philion  V.  Bisson,  23  Low.  Can.  Jur.,  32   (Super.,  1878).] 

So,  of  gas-fittings.  Ackroyd  v.  Mitchell  (supra)  ;  Ex  parte  Acton,  4 
L.  T.  (N.  S.),  261  (1861);  Ex  parte  Wilson,  2  Mont.  &  Ayr.,  61  (1835). 
[Atkinson  v.  Noad,  14  Low.  Can.,  159  (1863).]  Though  not  of  gas-fixtures. 
See  post  in  this  chapter.  [So,  of  gas  and  electric  chandeliers.  Stack  v. 
Eaton,  4  Ont.  Law,  335    (1902).] 

So,  of  iron  pipes  for  heating  purposes,  attached  in  the  usual  way  by 
slings,  hangers,  etc.  Quinby  v.  Manhattan  Cloth  Co.;  Ex  parte  Wilson 
(supra).  [Keeler  v.  Keeler,  31  N.  J.  Eq.,  181,  190  (1879)  ;  National  Bank 
V.  North,  160  Pa.  St.,  303  (1894).  So,  of  heating  plant.  Williams  v. 
Chicago  Exhib.  Co.,  188  111.,  19  (1900);  Tyler  v.  White,  68  Mo.  App.,  607, 
609  (1897).  So,  of  radiators.  Watson  v.  Watson  Mfg.  Co.,  30  N.  J.  Eq., 
483  (1879);  Capehart  v.  Foster,  61  Minn.,  132,  134  (1895);  Murphy  v. 
Smith,  61  App.  Div.,  574,  575   (N.  Y.,  1901).] 

So,  of  a  railway  fixed  to  the  ground  by  means  of  sleepers  partially  buried 
in  the  ground,  the  rails  let  into  and  attached  to  the  sleepers  by  spikes.  The 
Patent  Peat  Co.,  17  L.  T.   (N.  S.),  69   (1867).     [VanHusen  v.  Omaha  B. 

6  T.  E'y  Co.,  118  Iowa,  366,  378  (1902);  Speiden  v.  Parker,  46  N.  J.  Eq., 
292  (1889);  Eoddy  v.  Brick,  42  N.  J.  Eq.,  218  (1886);  VanKeuren  v. 
Central  E.  E.  of  N.  J.,  38  N.  J.  Law,  165,  167  (1875).  So,  of  a  tram- 
way and  a  steam  crane  on  a  stone  quarry.  Ex  parte  Moore  &  Eobinson  's 
Banking  Co.   (1880),  14  Ch.  D.,  379,  386.] 

So,  of  water-wheels  and  gears.  Corliss  v.  McLagin;  Bowen  v.  Wood 
(supra);  McCluney  v.  Lemon,  Hayes,  154  (1831);  Davenport  v.  Shants, 
43  Vt.,  546  (1871).  [United  States  v.  Friction-Match  Mach.,  1  Haskell, 
32,  36  (U.  S.  Dist.  Ct.,  Me.,  1866)  ;  Thompson  v.  Vinton,  121  Mass.,  139, 
142  (1876);  Eobertson  v.  Corsett,  39  Mich.,  777,  782  (1878);  Keeler  v. 
Keeler,  31  N.  J.  Eq.,  181,  190  (1879)  ;  Phoenix  Mills  v.  Miller,  17  N.  Y. 
Supp.,  158  (1891),  aff'g  4  N.  Y.  St.  E.,  787,  790  (1886).] 

So,  of  hydraulic  and  other  presses,  steam  and  water-pipes,  etc.,  fixed  to 
the  freehold.  Crane  v.  Brigham,  11  N.  J.  Eq.,  29  (1855) ;  Longbottom  v. 
Berry,  L.  E.  5  Q.  B.,  123  (1869);  s.  c,  39  L.  J.  (N.  S.),  Q.  B.,  37,  44; 

390 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

Despatch  Line  v.  Bellamy  Manuf'g  Co.;  Quinby  v.  Manhattan  Cloth,  etc., 
Co.  (supra);  Bond  v.  Coke,  71  N.  C,  97  (r874),  a  cotton-press;  Baker  v. 
Davis,  19  N.  H.,  325  (1849),  a  clothier's  press.  [Jones  v.  Bull,  85  Tex., 
136,  139  (1892),  a  cotton-press.  Otis  v.  May,  30  111.  App.,  581,  585  (1888), 
a  printing   press.] 

So,  of  an  iron  safe  let  into  a  brick  wall,  and  surrounded  with  brick  and 
mortar.     Longbottom  v.  Berry   (supra). 

So,  of  leather  belting  not  removable  entirely  without  being  separated  at 
the  point  where  the  ends  are  united,  though  capable  of  being  slipped  otf  from 
the  drum  of  the  shaft.  Longbottom  v.  Berry  (supra).  [See  Seiberling  v. 
Miller,  106  111.  App.,  190,  193  (1902),  aff'd  207  111.,  443  (1904);  Langdon 
V.  Buchanan,  62  N.  H.,  657,  659  (1883)  ;  Delaware,  L.  &  W.  E.  E.  Co.  v. 
Oxford  Iron  Co.,  36  N.  J.  Eq.,  452  (1883)  ;  Keeler  v.  Keeler,  31  N.  J.  Eq., 
181,  190  (1879);  Gill  v.  Weston,  110  Pa.  St.,  312,  317  (1885);  Philion  v. 
Bisson,  23  Low.  Can.  Jur.,  32  (Super.,  1878)  ;  Sheffield  Bldg.  Soc.  v. 
Harrison  (1884),  15  Q.  B.  D.,  358.  See,  also,  Knickerbocker  Tr.  Co.  v. 
Penn  Cordage  Co.,  62  N.  J.  Eq.,  624  (1901),  belting  "from  six  inches  up, 
which  drives  from  the  shafts. ' '] 

So,  of  a  "Noyes  portable  grist-mill,"  the  frame  containing  which  was 
fastened  to  the  building  by  being  placed  on  timbers  resting  on  the  floor 
and  secured  by  bolts  passing  through  the  frame  and  these  timbers  and  the 
floor  joists  and  corresponding  timbers  below  supported  by  upright  posts 
resting  on  the  cellar  bottom,  the  bolts  being  secured  by  screws,  nuts  and 
washers,  and  such  mill  being  designed  as  a  permanent  structure  for  use  as 
a  custom  grist-mill.  Potter  v.  Cromwell,  40  N.  Y.,  287  (1869).  See,  also, 
Place  V.  Fagg,  4  M.  &  E.,  277  (1829)  ;  s.  c,  7  L.  J.,  K.  B.,  195;  Gardner 
V.  Finley,  19  Barb.,  317  (1855)  ;  a  patent  mill  and  buzz-saws  put  into 
another  mill.  [A  portable  grist-mill  and  scales.  Langdon  v.  Buchanan, 
62  N.  H.,  657,  659'  (1883).] 

So,  of  a  windlass  in  a  slaughter-house,  the  ends  of  which  passed  through 
holes  in  upright  pieces  of  timber  firmly  nailed  at  top  and  bottom.  Capen 
V.  Peckham,  35  Conn.,  88   (1868). 

So,  of  a  thresliing-machine  fixed  by  bolts  and  screws  to  posts  let  into  the 
ground.  Wiltshear  v.  Cottrell,  1  Ell.  &  Bl.,  674  (1853);  s.  C,  22  L.  J,, 
Q.  B.,  177;  17  .lur.,  758;  18  Eng.  L.  &  Eq.,  142. 

So,  of  a  cider-mill  and  press,  the  press  standing  upon  cross-sills  lying 
upon  bed-sills  resting  on  flat  stones  in  the  ground,  the  press-sills  halved  and 
fastened  into  the  bed-sills  by  keys,  and  the  post  of  the  screw-beam  braced 
to  the  frame  of  the  building  with  the  brace  secured  by  nails,  and  which 
could  not  be  removed  from  the  building  without  being  taken  apart.  As  to 
the  detached  portions  of  the  mill  see  post  in  this  chapter.  Wadlcigh  v. 
Janvrin,  41  N.  IT.,  503  (1860),  disapproving  the  cider-mill  case  decided  by 
Comyns,  C.  B.,  cited   3  Atk.,   14. 

[So,  of  a  sorghum-mill  fastened  to  a  log  set  in  the  ground.  Kennard  v. 
Brongh,  64  Ind.,  23  (1878).  See  Hutching  v.  Masterson,  46  Tex.,  551, 
555  (1877),  as  to  a  sugar-mill.] 

So,  of  a  cotton  gin  fastened  to  the  house  by  nails  and  braces.     Degraf- 

391 


•275  THE  i,Aw  OP  FIXTURES.  [chap.  IX. 

fenreid  v.  Sorujigs,  4  Humph.,  451  (1844).  See,  also,  Lafliu  v.  Griffiths, 
35  Barb.,  58  (18G0),  aiul  pout  in  this  cliapter.  [Best  v.  Hardy,  123  N.  C, 
2-26,  228  (1898)  ;  Jones  v.  Bull,  S5  Tox.,  136,  139  (1892).  See,  also. 
Smith  V.  Odom,  03  Ga.,  499,  5U3  (1879),  as  to  the  running  gear  of  a 
cotton-gin.] 

So,  of  a  drying  kiln  and  piping.  Burke  v.  Taylor,  46  Up.  Can.  Q.  B., 
371    (1881).] 

So,  of  a  steam-engine,  hay-cutter,  corn-crusher,  malt-mill  and  mill-stones 
erected  by  an  inn-keeper  for  use  in  his  business.  Walmsley  v.  Milne,  7 
C.  B.  (N,  S.),  115  (1859).  [See,  as  to  mill-stones.  Best  v.  Hardy,  123 
N.  C,  226,  228    (1898).] 

So,  of  the  machinery  of  a  sash,  door,  blind,  etc.,  factory,  consisting  of 
planing-raachines,  shapers,  and  moulding-machines  firmly  fastened  to  and 
necessary  to  the  purposes  of  the  factory.  Green  v.  Phillips,  26  Gratt., 
752  (1875).  [So,  of  the  heavy  machinery  in  a  planing-mill,  kept  steady  by 
cleats  nailed  down.  Adamson  v.  Mcllvaine,  3  Man.,  29  (1885).  See, 
also,  Tibbetts  v.  Homes,  65  N.  H.,  242  (1889),  as  to  bobbin-mill  ma- 
chines.] 

So,  of  the  machinery  of  a  paper-mill.  Bowen  v.  Wood,  35  Ind.,  268 
(1871). 

[So,  of  calenders,  metal  rolls,  paper  trimming  and  cutting  machines, 
embossing  and  enameling  machines,  force-pump,  and  steam-pipes.  Fish 
V.  N.  Y.  Paper  Co.,  29  N.  J.  Eq.,  16   (1878).] 

[So,  of  looms  fixed  to  the  freehold.  Huddersfield  Banking  Co.  v.  Lister 
[1895],  2  Ch.,  273.] 

[So,  of  machinery  affixed  to  a  cloth-mill.  Irish  Bldg.  Soc.  v.  Mahony 
(1876),   10   Irish  R.  Law,   363,   369.] 

[So,  of  machinery  in  a  flouring-mill.  Case  Mfg.  Co.  v.  Garven,  45 
Ohio  St.,  289    (1887).] 

[So,  of  a  digester,  soap  kettles,  boiler,  and  candle  machines,  all  an- 
nexed, adapted  to  and  intended  for  permanent  use  in  a  soap  factory. 
Lavenson  v.  Standard  Soap  Co.,  80  Cal.,  245   (1889).] 

[So,  of  nail  machines,  grindstones,  bluing  machine,  shears,  scouring  ma- 
chines, nail  bins,  and  duplicate  machinery  kept  on  hand  in  case  of  accident, 
shafting,  belting,  and  grip  levers,  all  in  a  building  erected  expressly  to 
accommodate  them,  and  never  used  for  any  other  purpose.  Delaware, 
L.  &  W.  R.  R.  Co.  V.  Oxford  Iron  Co.,  36  N.  J.  Eq.,  452  (1883).] 

So,  of  saw-mill  machinery,  consisting  of  saw-arbor  and  boxes,  circular- 
saw,  feed,  and  gig-works,  log-rolls  and  fixtures,  all  attached  to  a  frame 
bolted  to  the  floor  timbers.  Davenport  v.  Shants,  43  Vt.,  546  (1871). 
[Markle  v.  Stackhouse,  65  Ark.,  23  (1898);  Bemis  v.  First  Nat.  Bank, 
63  Ark.,  625  (1897);  Coleman  v.  Stearns  Mfg.  Co.,  38  Mich.,  30  (1878); 
Sowles  V.  Raymer,  110  Mich.,  189  (1896)  ;  Bigler  v.  National  Bank  of 
Newburgh,  33  Supr.  Ct.  (26  Hun),  520,  523  (N.  Y.,  1882)  ;  Best  v.  Hardy, 
123  N.  C,  226,  228  (1898)  ;  Home  v.  Smith,  105  N.  C,  322  (1890)  ;  Muir 
V.  Jones,  23  Ore.,  332,  337  (1892);  Carr  v.  Fire  Assurance  Ass'n,  14  Ont., 

392 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

487  (1887);  Hurrey  v.  Bank,  1  N.  Z.  L.  R.,  Ct.  App.,  115,  139  (1882). 
See  Stinchfield  v.  Milliken,  71  Me.,  567   (1880).] 

[So,  of  laundry  machinery.  Atlantic  Tr.  Co.  v.  Atlantic  City  Laundry 
Co.,  64  N.  J.  Eq.,  140,  146   (1902).] 

[So,  of  steam-cranes,  a  McKenzie  blower  (a  large  iron  box  with  a  fan 
to  create  blast  to  melt  iron),  scales,  a  forge  with  the  bellows  used  there- 
with, a  pump,  and  anvils  in  an  iron  foundry.  Eoddy  v.  Brick,  42  N.  J. 
Eq.,    218    (1886)  ;    see   Gooderham   v.   Denholm,    18   Up.    Can.   Q.   B.,    203 

(1859).] 

[So,  of  railroad  spike  machines  weighing  five  thousand  pounds,  in  a 
rolling-mill.     McFadden  v.  Crawford,  36  W.  Va.,  671    (1892).] 

[So,  of  machinery  for  smelting.     Thomas  v.  Davis,  76  Mo.,  72   (1882).] 

[So,  of  a  generator  for  manufacturing  gas,  a  gas-pump,  pipes,  and 
gas-burners.     Keeler  v.  Keeler,  31  N.  J.   Eq.,   181,   190    (1879).] 

[So,  of  pumps,  pipes,  a  copper  kettle,  cooler,  malt-mill,  wind-mill,  plunger 
and  an  iron  elevator  in  a  brewery.  Scheifele  v.  Schmitz,  42  N.  J.  Eq.,  700, 
701   (1887).] 

[So,  of  machinery  for  a  boiler  factory.  Buck's  App.,  2  Pennypaeker, 
327   (Pa.,  1882).] 

[So,  of  machinery  in  iron  works.  Feder  v.  VanWinkle,  53  N.  J.  Eq., 
370,  375   (1895);   Kisterbock  v.  Lanning,  7  Atl.,  596,  597   (Pa.,  1887).] 

[So,  as  to  brewery  machinery.  Scheifele  v.  Schmitz,  42  N.  J.  Eq.,  700, 
701  (1887);  Manufacturers'  Nat.  Bank  v.  Eober,  19  N.  Y.  Weekly  Dig., 
476,  477  (1884).  So,  of  a  refrigerating  machine  and  apparatus  in  a 
brewery.     Schmaltz  v.  York  Mfg.  Co.,  204  Pa.  St.,  1,  18   (1902).] 

[So,  of  mining  machinery.  Shields  v.  Delo,  145  Pa.  St.,  393  (1891). 
So,  of  quarry  machinery.  Williams'  App.,  1  Monaghan,  274,  282  (Pa., 
1889).  So,  of  a  stone  crusher.  Davis  v.  Mugan,  56  Mo.  App.,  311 
(1893).] 

[See,  generally,  as  to  machinery,  post,  p.  *291 ;  also  Fisk  v.  People's 
Bank,  14  Colo.  App.,  21  (1899);  Fifiold  v.  Farmers'  Nat.  Bank,  148  III., 
163  (1893);  Calumet  Iron  Co.  v.  Lathrop,  36  111.  App.,  249  (1889);  lie 
Worland,  92  Fed.,  893,  895  (U.  S.  Dist.  Ct.,  Iowa,  1899)  ;  Feder  v.  Van- 
Winkle,  53  N.  J.  Eq.,  370,  376  (1895);  Knickerbocker  Trust  Co,  v.  Penn 
Cordage  Co.,  58  Atl.,  409,  410  (N.  J.,  1904)  ;  Homestead  Land  Co.  v. 
Becker,  96  Wis.,  206,  211  (1897);  Eobinsou  v.  Cook,  6  Ont.,  590,  598 
(1884);   London  Loan   Co.  v.   Pulford,   8  Ont.  Pr.,   150    (1879).] 

So,  of  dwellings,  mills  or  other  buildings.  Colo  v.  Stewart,  11  Cush.,  181 
(1X53);  Butler  v.  Page,  7  Met.,  40  (1843);  Pea  v.  Pea,  35  Ind.,  387 
(1H71);  Ritchmyer  (or  Eichtmyer)  v.  Morss,  3  Keyes,  349  (1867);  s.  c, 
4  Abb.  Ct.  App.  Dec,  55.  [See,  ante,  p.  *274.  Isham  v.  Morgan,  9  Conn., 
374,  377  (1832);  Williams  v.  Chicago  Exhib.  Co.,  188  111.,  19  (1900); 
Matzon  v.  Criffin,  78  111.,  477,  4S1  (1875);  Smyth  v.  Stoddard,  203  111., 
424  (1903);  Off  v.  Finkelstein,  200  Til.,  40  (1902),  aff 'g  100  111.  App.,  11, 
16  (1901);  Humphreys  v.  Newman,  51  Me.,  40,  51  (1863);  Oliver  v. 
Brown,  80  Me.,  542  (1888);  Wight  v.  Orny,  73  Me.,  297,  299  (1882); 
Mitchell  V.  Smith,  67  Me.,  338,  343  (1876)  ;  Guernsey  v.  Wilson,  134  Mass., 

393 


•l275  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

4S-2,  4S4  (18S3);  Miles  v.  McNaughton,  111  Mich.,  350,  35-1  (1896); 
Stevens  v.  Rose,  69  Mich.,  1251)  (1888);  Moore  v.  Moiivn,  64  Neb.,  84 
(1902);  Bean  v.  Braekett,  34  N.  H.,  102,  119  (1856);  Sweet  v.  Henry, 
66  App.  Div.,  383  (N.  Y.,  1901);  Brown  v.  Fox,  33  N.  Y.  Supp.,  57 
(1895);  Rotan  Grocery  Co.  v.  Dowlin,  77  S.  W.,  430,  431.  (Tex.  Civ.  App., 
1903);  Miles  v.  Ankatell,  25  Ont.  App.,  458  (1898),  reversing  29  Ont., 
21  (1897);  Bald  v.  Ilagar,  9  Up.  Can.  C.  P.,  382;X"amerou  v.  Hunter,  34 
Up.  Can.  Q.  B.,  121;  Hudson's  Bay  Co.'  v.  Macdonald,  4  Man.,  237,  240 
(1887);  Doran  v.  Willard,  14  N.  Brunsw.,  358  (1873);  see,  also,  Tharp 
V.  Allen,  46  Mich.,  389,  392;  Gilliam  v.  Bird,  30  N.  C,  280,  284  (1848). 
"Whore  a  one-story  brick  building  covered  a  tract  of  land,  part  of  which 
is  granted  to  one  person,  and  the  remainder  to  another,  each  grantee 
owns  in  severalty  that  portion  of  the  building  resting  upon  his  land,  and 
acquires  no  interest  in  that  portion  resting  upon  the  land  of  the  other; 
and  a  bill  for  partition  will  not  lie.  Stevenson  v.  Bachrach,  170  111.,  253, 
256  (1897).  An  oral  agreement  was  made  for  the  sale  of  a  tract  of  land 
for  thirty  dollars;  two  days  later  the  vendor  orally  agreed  to  build  a 
house  on  the  land,  for  which  the  vendee  was  to  pay  three  hundred  dol- 
lars. After  the  house  was  built,  and  the  vendee  took  possession,  the 
vendor  tendered  a  deed  in  which  the  consideration  named  was  three  hun- 
dred and  thirty  dollars,  and  which  the  vendee  refused  to  accept,  claiming 
that  the  consideration  was  only  thirty  dollars.  Held,  that  the  house  be- 
came a  part  of  the  land,  and  the  consideration  was  properly  placed  at 
three  hundred  and  thirty  dollars.     Davison  v.  Poole,  65  Tex.,  376   (1886).] 

So,  of  doors,  locks,  etc.  Pettengill  v.  Evans,  5  N.  H.,  54  (1829).  [See, 
post,  p.  *301.     Lackas  v.  Bahl,  43  Wis.,   53    (1877).] 

So,  of  a  factory  bell  placed  in  a  tower  erected  for  the  purpose,  and  firmly 
attached  thereto.  Alvord  Carriage  Manuf'g  Co.  v.  Gleason,  36  Conn.,  86 
(1869).  See,  also,  Weston  v.  Weston,  102  Mass.,  514  (1869);  though  not 
as  to  a  plantation  bell  temporarily  placed  upon  two  posts  for  use,  but  in 
no  wise  fastened  thereto.     Cole  v.  Roach,  37  Tex.,  413   (1872). 

So,  of  a  hotel  sign  intended  for  a  permanent  sign  for  the  house,  fastened 
to  the  arm  of  a  post  set  in  the  street  several  feet  from  the  front  line  of  the 
hotel  lot  and  3  or  4  feet  in  the  ground,  and  secured  by  a  band  of  iron 
spiked  to  the  sidewalk.  Redlon  v.  Barker,  4  Kan.,  445  (1868).  [See  New 
York  Life  Ins.  Co.  v.  Allison,  107  Fed.,  179,  184  (U.  S.  C.  C.  A.,  N.  Y., 
1901),  as  to  an  electric  sign.] 

So,  as  to  awning  frames  and  the  awning  as  accessory  thereto,  and  a  mar- 
ble meat  slab  fitted  to  a  counter.  Ee  Hitchings,  4  Nat.  Bank.  Reg.  (2d  ed.), 
384   (1870). 

So,  of  shelves,  drawers,  and  counters  put  up  in  the  usual  way  by  the 
owner  of  a  building  to  fit  it  for  use  as  a  retail  dry  goods  and  grocery 
store,  the  shelves  shoved  into  standards  fastened  to  the  wall  and  the 
counters  nailed  to  the  floor.  Tabor  v.  Robinson,  36  Barb.,  483  (1862). 
[That  shelving,  counters,  saloon  fixtures,  and  drawers  pass  with  the  realty, 
see  Johnston  v.  Philadelphia  Mort.  Co.,  129  Ala.,  515,  522  (1900)  ;  Towson 
V.  Smith,   13  App.,   D.   C,  48    (1898)  ;   Woodham   v.   First   Nat.  Bank,   48 

394 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

Minn.,  67,  68  (1892)  ;  Grand  Island  Bank  v.  Koehler,  57  Neb.,  649,  655 
(1899);  McLean  v.  Palmer,  2  Luz.  Leg.  Keg.  K.,  S^g  (1882);  Connor  v. 
Squires,  50  Vt.,  680  (1878);  Stack  v.  Eaton,  4  Ont.  Law,  335  (1902); 
McCausland  v.  McCallum,  3  Ont.,  305  (1883) ;  see,  however,  Johnson  v. 
Mosher,  82  Iowa,  29  (1891).  See,  also,  Taylor  v.  Plunkett,  56  Atl.,  384 
(Del.,  1903),  as  to  bakers'  tables,  trays,  etc.,  fastened  by  nails.] 

So,  as  to  a  water  pipe  through  which  water  is  supplied  to  a  house  from 
a  branch  pipe  of  an  aqueduct  company  with  which  it  is  connected,  though 
such  water  pipe  is  laid  across  the  intervening  land  of  a  third  person  to  the 
point  of  connection  in  the  highway.  The  right  (possessed  by  the  grantor) 
of  drawing  water  through  it,  being  a  mere  personal  right,  does  not,  how- 
ever, pass  by  a  conveyance  of  the  premises.  Philbrick  v.  Ewing,  97  Mass., 
133  (1867).  [A  corporation  owning  a  new  subdivision,  laid  water-pipes 
in  a  public  road,  and  connected  same  with  the  city  waterworks,  placing  a 
meter  at  the  point  of  connection.  Subsequently  it  conveyed  a  house  and  lot 
"together  with  all  rights,  privileges,  immunities  and  appurtenances." 
The  premises  were  afterwards  connected  with  the  water-system.  After 
selling  all  of  its  lots,  the  corporation,  by  a  bill  of  sale,  sold  the  water 
pipe  and  meter  and  all  appurtenances  to  one  of  its  stockholders.  Held, 
that  the  water  pipes  and  meter  were  personalty;  and  all  that  passed  to  the 
grantee  of  the  lot  as  appurtenant,  was  the  service  pipe  connecting  with  the 
supply  pipe,  and  the  right  to  receive  water  at  a  reasonable  price,  but  no  right 
to  the  main  pipe,  which  was  transferred  by  the  bill  of  sale.  Mulrooney 
V,  Obear,  171  Mo.,  613  (1902).  See,  also,  Atkinson  v.  Noad,  14  Low.  Can,, 
159   (1863).] 

[So,  of  iron  cupolas  lined  with  brick,  and  cranes,  all  upon  foundations, 
and  a  platform-scale  in  a  pit  of  brick  work.  Watson  v.  Watson  Mfg.  Co., 
30  N,  J.  Eq.,  483  (1879);  Lord  v,  Detroit  Sav.  Bank,  93  N.  W.,  1063, 
1064    (Mich.,   1900).] 

[So,  of  a  drill  attached  by  screws  and  braces.  Southbridge  Sav,  Bank 
V,  Stevens  Tool  Co.,  130  Mass.,  547   (1881).] 

[So,  of  tanks  and  a  meat-chopper,  in  a  slaughter-house.  Kloess  v.  Katt, 
40  111.  App.,  99,  100    (1891).] 

[So,  of  boilers,  heaters,  radiators,  ranges,  dumb-waiters  and  tube  at- 
tached.    Murphy  v.  Smith,  61  App.  Div.,  574,  575   (N.  Y.,  1901).] 

[So,  of  a  brass  faucet  attached  to  a  hot  water  boiler,  Kirchman  v. 
Lapp,  19  N.  Y.  Supp.,  831,  832   (1892).] 

[So,  of  a  drum,  hoisting  works  and  connecting  pipes  in  a  mine.  Dutro 
v.  Kennedy,  9  Mont.,  101   (1889).] 

[So,  of  hoisting  gear  and  derricks  on  or  near  a  stone  quarry  and  dock. 
Speiden  v.  Parker,  46  N.  J.  Eq.,  292   (1889).] 

[So,  of  stage  fixtures,  drop  curtain  and  opera  chairs.  Murray  v.  Ben- 
der, 125  Fed.,  705  (U.  S.  C.  C.  A.,  Mont.,  1903);  Bender  v.  King,  111 
Fed.,  60  (U.  S.  C.  C,  Mont.,  1901);  Oliver  v.  Lansing,  59  Neb.,  219,  228 
(1899)  ;  Temple  Co.  v.  Penn  Mut.  Ins.  Co.,  69  N.  J.  Law,  36  (1903)  ;  New 
York  Life  Ins.  Co.  v.  Allison,  107  Fed.,  179  (U.  S.  C.  C.  A.,  N.  Y.,  1901). 
The   last  case,  in   addition   to   theater   chairs,   involved   mirrors   forming  a 

395 


•275  THE  LAW  OF  FIXTURES.  [CIIAP.    IX. 

part  of  the  walls,  and  pumping  engines  bolted  to  the  floor,  and  their 
connections.    Security  T.  Co.  v.  Temple  Co.,  58  Atl.,  865  (N.  J.  Ch.,  1904).] 

[So,  of  steam-pipos,  floors  and  partitions.  Phoenix  Mills  v.  Miller,  17 
N.  Y.  Supp.,  LIS  (185)1),  afl:'g  4  N.  Y.  St.  R.,  787,  790  (1886).] 

[So,  of  tilo  hearths  bedded  in  cement;  and  a  smoke-jack.  Nisbet  v. 
Mitchell-Iunes    (1880),    17    Scot.    Law   Eep.,   438.] 

[So,  of  an  office  desk  about  twenty-five  feet  long,  so  placed  that  the 
ends  fitted  against  projections  against  the  wall  in  such  a  manner  that  the 
space  behind  the  desk  formed  a  hotel  office,  each  end  of  the  desk  being 
fastened  to  the  wall  by  means  of  screws.  Capehart  v.  Foster,  61  Minn., 
132,  134  (1895).     See  Towson  v.  Smith,  13  App.,  D.  C,  48   (1898).] 

[So,  of  mats,  nailed  to  the  floors,  an  oil-cloth  nailed  to  the  stair-case, 
and  punkahs  fixed  to  and  depending  from  the  ceiling  by  ropes  and  screws. 
Brown  v.  Herriott,  1  Kyshe,  43,  51  (Straits  Set.,  1842).  The  decision  in 
this  case  seems   to  have  been  influenced  by  a  custom.] 

[So,  of  one-half  of  a  party-wall.  Goldschmid  v.  Starring,  16  D.  C,  (5 
Mackey),  582  (1887);  Sherred  v.  Cisco,  6  N.  Y.  Super.,  480,  489  (1851); 
Kinnear  v.  Moses,  32  Wash.,  215,  217  (1903)  ;  or  the  entire  wall  if  it 
stands  upon  the  ground  conveyed.  Smith  v.  Martin,  4  Ky.  L.  R.,  442 
(1882).] 

[So,  of  a  fence.  Hereford  v.  Pusch,  68  Pac,  546,  550  (Ariz.,  1902)  ; 
Graham  v.  Eoark,  23  Ark.,  19,  23  (1861);  Knox  v.  Brotherton,  14  N.  S. 
W.,  Supr.  Ct.,  185  (1875);  see,  also,  Bagley  v.  Rose  Hill  Sugar  Co.,  Ill 
La.,  249  (1903);  Carro  v.  Tucker,  2  Tex.  Ct.  of  App.,  Civ.,  §455   (1884).] 

[So,  of  stone-curbing  around  a  burial  lot,  and  a  monument  cemented 
to  a  stone  foundation,  built  for  ornamentation  in  a  cemetery.  Oakland 
Cem.   Co.  V.  Bancroft,   161   Pa.  St.,   197    (1894).] 

[So,  of  a  windmill.     Vaughn  v.  Grigsby,  8  Colo.  App.,  373,  374  (1896).] 

[So,  of  a  galvanized  iron  cistern  above  ground.  Siemers  v.  Hunt,  28 
Tex.  Civ.  App.,  44  (1902).] 

[So,  of  marble  vases  cemented  to  pedestals  firmly  fixed  in  the  ground  in 
front  of  a  house.  Skinner  v.  Bowen,  13  Vict.,  481  (1887).  But  see  Nisbet 
V.  Mitchell-Innes    (1880),  17  Scot.  Law  Eep.,  438,  440.] 

[So,  of  platform  scales,  Arnold  v.  Crowder,  81  111.,  56  (1876)  ;  Thom- 
son V.  Smith,  111  Iowa,  718,  724  (1900)  ;  Knickerbocker  Trust  Co.  v.  Penn 
Cordage  Co.,  62  N.  J.  Eq.,  624  (1901);  Watson  v.  Watson  Mfg.  Co.,  30 
K.  .L  Eq.,  483  (1879).] 

[So,  of  a  hay  fork,  consisting  of  a  track  bolted  to  the  barn  roof,  and 
the  truck,  pulleys  and  rope.  McCarthy  v.  McCarthy,  20  Can.  Law  T., 
Occ.   N.,   211,   212    (Co.   Ct.,   Ont.,   1900).] 

[So,  of  dynamos,  exciters,  an  electric  annunciator,  and  electric  wiring. 
Temple  Co.  v.  Penn  Mut.  Ins.  Co.,  54  Atl.,  295,  296  (N.  J.,  1903); 
Security  Trust  Co.  v.  Temple  Co.,  58  Atl.,  865  (N^  J.  Ch.,  1904); 
New  York  Security  Co.  v.  Saratoga  Light  Co.,  95  Supr.  Ct.  (88  Hun), 
569,  591  (N.  Y.,  1895);  Capehart  v.  Foster,  61  Minn.,  132,  134  (1895); 
Berliner  v.  Piqua  Club,  66  N.  Y.  Supp.,  791  (1900)  ;  Seiberling  v.  Miller, 
106  111.  App.,  190,  193  (1902),  afP'd  207  111.,  443  (1904).  In  Temple  Co. 
V.  Penn  Mut.  Ins.  Co.,  supra,  a  range  was  also  included;   in  Berliner  v. 

396 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *275 

Piqiia  Club,  an  iron  filter;  and  in  Seiberling  v.  Miller,  heaters  and  iron 
smoke  stacks.  A  mortgage  of  a  lot  upon  which  a  power  house  is  located, 
covers  the  wires  connected  with  the  power  house  and  the  poles  in  the  city 
streets,  upon  which  such  wires  are  strung,  all  forming  an  electric  light 
plant;  and  this  is  so  though  the  line  of  poles  and  wires  extend  into  another 
borough.  Driesbach  v.  Boss,  195  Pa,  St.,  278  (1900)  ;  Fechet  v.  Drake,  2 
Ariz.,  239    (1887).] 

[So,  of  a  railroad  embankment  and  riprapping.  VanHusen  v.  Omaha 
B.  &  T.  E'y  Co.,  118  Iowa,  366,  378  (1902);  Omaha  B.  &  T.  E'y  Co.  v. 
Whitney,   99   N.  W.,   525    (Neb.,   1904).] 

[Stone  passes  to  the  grantee,  whether  imbedded  in  the  soil,  or  gathered 
in  rows  to  enable  the  land  to  be  cultivated.  Ellis  v.  "Wren,  84  Ky.,  254 
(1886).] 

But  a  mortgage  executed  by  an  agent,  which  is  inoperative  as  to  real 
estate  on  account  of  want  of  proper  authority  on  the  part  of  the  agent, 
and  also  the  absence  of  a  ratification  of  his  acts,  is  also  inoperative  as  to 
articles  which  are  so  annexed  as  to  be  fixtures  as  between  mortgagor  and 
mortgagee.  Despatch  Line  of  Packets  v.  Bellamy  Manf 'g  Co.,  12  N,  H,, 
205  (1841). 

The  converse  of  the  rule  stated  in  the  text  is  to  some  extent  true;  thus,  it 
is  held  that  land  may  pass  by  a  deed  which  does  not  contain  any  descrip- 
tion of  the  land,  but  which  grants  only  the  structure  which  is  erected  upon 
it ;  so  that  a  grant  of  a  barn,  a  shop,  a  house,  a  well,  or  a  mill,  will  convey 
a  title  to  the  land  under  it  and  necessary  to  its  enjoyment  and  use.  Green- 
wood v.  Murdock,  9  Gray,  20  (1857);  Cheshire  v.  Shutesbury,  7  Met.,  566 
(1844);  Forbush  v.  Lombard,  13  Met.,  109  (1847);  Johnson  v.  Kayner,  6 
Gray,  110  (1856);  Blake  v.  Clarke,  6  Me.,  436  (1830);  Sherman  v.  Will- 
iams, 113  :Mass.,  481  (1873).  See,  also,  Gear  v.  Barnum,  37  Conn.,  229 
(1870).  [Pottkamp  v.  Buss,  31  Pac,  1121,  1222  (Cal.,  1892);  Wilds  v. 
Ward,  138  Ind.,  373,  376  (1894);  City  of  Crawfordsville  v.  Boots,  76  Ind., 
32,  34  (1881);  Hatch  v.  Brier,  71  Me.,  542  (1880);  Cunningham  v.  Webb, 
69  Me.,  92,  95  (1879);  Webster  v.  Potter,  105  Mass.,  414,  415  (1870); 
Esty  V.  Currier,  98  Mass.,  500,  501  (1868) ;  Bacon  v.  Bowdoin,  39  Mass., 
401,  406  (1839)  ;  43  Mass.,  591,  598  (1841)  ;  Bawden  v.  Hunt,  123  Mich., 
295,  297  (1900);  Davis  v.  Handy,  37  N.  H.,  65,  71  (1858);  Bean  v. 
Brackett,  34  N.  H.,  102,  119  (1856)  ;  Gibson  v.  Brockway,  8  N.  H.,  465, 
470  (1837);  Wade  v.  Odle,  21  Tex.  Civ.  App.,  656,  660  (1899);  Wilson 
V.  Hunter,  14  Wis.,  683,  687  (1861);  see,  also,  Board  of  Education  v. 
State,  64  Kan.,  6,  12  (1902);  Woodman  v.  Smith,  53  Me.,  79,  81  (1865); 
State  V.  Hannibal,  &c.,  K.  R.  Co.,  135  Mo.,  618,  644  (1896);  Ogden  v. 
Jennings,  62  N.  Y.,  526  (1875)  ;  Stone  v.  Thaden,  10  N.  Y.  Supp.,  236, 
237  (1890);  Fisk  v.  Brayman,  21  R.  I.,  195,  198  (1899);  Roby  v.  Uni- 
versity, 36  Vt.,  564,  565  (1864).  The  rule  is  the  same  under  a  sale  on 
execution.  Dean  v.  Pynchcon,  3  Chand.,  9,  19  (Wis.,  1850)  ;  and  an  attach- 
ment of  a  dwelling-houso  carries  the  land.  Marston  v.  Stickney,  58  N.  H., 
609,  610  (1879).  Tjkcwiso,  a  devise  of  a  building  carries  the  land. 
Richmond  v.  State,  5  Ind.,  334,  337  (1854)  ;  Rogers  v.  Smith,  4  Pa.  St.,  93, 

397 


*275  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

101  (1846)  ;  Whitney  v.  Olney,  3  Mason,  280,  281  (U.  S.  C.  C,  R.  I.,  1823). 
The  same  rule  applies  in  the  case  of  a  mechanics'  lien.  Strang  v.  Pray,  89 
Tex.,  525,  528  (1896).  Likewise,  a  mortgage ,of  a  building  by  a  lessee  carries 
the  leaschohl  interest.  Cross  v.  Wearc  Commission  Co.,  153  111.,  499,  510 
(1894);  French  v.  Prescott,  61  N.  H.,  27,  29  (1881);  and  a  lease  of  a 
building  includes  the  land.  Humiston  v.  Wheeler,  175  111.,  514,  518  (1898)  ; 
Hooper  v.  Farnsworth,  128  Mass.,  487,  488  (1880)  ;  Chesebrough  v.  Pin- 
gree,  72  Mich.,  438,  443  (1888);  Lanphcr  v.  Glenn,  37  Minn.,  4  (1887); 
Kashville,  C.  &  St.  L.  R'y  v.  Heikens,  79  S.  W.,  1038,  1040  (Tenn.,  1904); 
but  the  lessee  of  the  ' '  first  floor ' '  has  no  right  in  the  land  beyond  the 
right  to  have  his  flat  sustained  by  the  subjacent  land.  Lieferman  v.  Osten, 
167  111.,  93,  99  (1897).  Likewise,  an  exemption  from  taxation  of  a 
building  extends  to  the  land.  Cassiano  v.  Ursuline  Acad.,  64  Tex.,  673 
(1885);  Gerke  v.  Purcell,  25  Ohio  St.,  229,  248  (1874).  An  exception  or 
a  reservation  of  a  building  in  a  grant  of  land  includes  the  land  upon 
which  it  stands.  Stirman  v.  Cravens,  33  Ark.,  376,  384  (1878);  Allen  v. 
Scott,  38  Mass.,  25,  29  (1838);  see,  also,  Sanborn  v.  Hoyt,  24  Me.,  118 
(1844),  as  to  the  effect  of  excepting  and  reserving  buildings  upon  a  con- 
siderable tract  of  land.  See  Meeks  v.  Willard,  57  N.  J.  Law,  22,  25 
(1894),  that  the  conveyance  of  a  building  carries  the  land  thereunder  to 
the  line  of  the  eaves.  Where  applicant  for  insurance  of  a  building  per- 
manently annexed  to  the  freehold,  represents  that  he  is  the  owner  in  fee 
simple,  he  unquestionably  warrants  that  he  had  svich  title  to  the  land  upon 
which  the  building  is  situated.  Pangborn  v.  Continental  Ins.  Co.,  62  Mich., 
638,  640  (1886).  Where  all  right,  title  and  interest  in  and  to  "all  the 
buildings,  tanks,  derricks,  pipes,  pipe  lines,  fixtures,  and  all  other  personal 
property  whatsoever ' '  situated  upon  oil  lands,  were  ' '  granted,  bargained, 
sold,"  the  deed  carries  the  right  to  operate  the  same  in  the  manner 
before  operated,  with  the  right  to  use  the  soil.  Dietz  v.  Mission  Co.,  95 
Cal.,  92,  100  (1892).  But  in  Green  Bay  Canal  Co.  v.  Hewitt,  66  Wis., 
461  (1886),  it  was  held  that  where  the  grantor  of  an  undivided  one-half 
of  a  tract  of  land  reserved  ' '  all  buildings  and  improvements, ' '  the  excep- 
tion extended  to  the  land  only  so  far  as  its  temporary  use  was  necessary 
to  the  enjoyment  of  the  buildings.  Especially  was  this  so  where  there  is 
uncertainty  as  to  what  the  reservation  included.] 

Plaintiff  conveyed  to  defendants  as  trustees  a  tract  of  land  with  a 
building  thereon  for  school  purposes  with  a  provision  in  the  deed  to  the 
effect  that,  if  the  design  should  prove  unsuccessful,  the  trustees  should  by 
resolution  so  declare,  and  thereupon  the  property  should  revert  to  the 
plaintiff.  Defendants  made  an  addition  attached  to  the  main  building  in 
such  a  manner  that  it  constituted  a  part  of  the  main  building,  and  caused 
the  whole  to  be  insured  for  $2,000.  The  building  was  destroyed  by  fire,  and 
the  loss  paid  to  the  trustees,  who  after  the  fire  passed  the  resolution  above 
referred  to  and  also  reconveyed  the  premises.  Held,  that  the  parties  Held 
the  addition  by  the  same  tenure  as  the  main  building,  that  the  insurance 
covered  both  it  and  the  main  building,  and  that  plaintiff  was  entitled  to 
this   insurance.     Hawes   v.   Lathrop,   38   Cal.,   493    (1869). 

398 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *276 

*ing  to  indicate  a  contrary  intention.^     And  it  makes  no  [*276] 
difference  that  the  conveyance  is  by  virtue  of  legal  process,  as 

[Under  an  executory  contract  for  the  conveyance  of  a  store  with  the 
fixtures  therein,  the  grantee  is  not  bound  to  accept  a  conveyance  after  the 
fixtures  have  been  removed.  Smyth  v.  Sturges,  13  Abbott's  New  Cas.,  75 
(N.  Y.,  1883).] 

[Where  a  first  and  second  mortgage  had  been  given  of  land  upon  which 
were  furnaces  for  smelting  ores,  the  second  mortgagee  claimed  the  precious 
metals  which  had  become  imbedded  in  the  brick  work  in  the  process  of 
smelting,  and  the  right  to  take  and  grind  the  bricks  in  order  to  extract 
such  metal.  Held,  that  the  furnaces  as  they  stood,  as  well  as  subsequent 
additions,  passed  to  the  first  mortgagee  when  he  entered  and  sold,  and  the 
second  mortgagee  had  no  rights  therein.  Tottenham  v,  Swansea  Ore  Co. 
(1885),  52  Law  T.  E.,  738.] 

[A  mortgage  covers  immovables  by  nature  and  by  destination.  William- 
son V.  Kichardson,  31  La.  Ann.,  685,  686  (1879)  ;  Maginnis  v.  Union  Oil 
Co.,  47   La.   Ann.,   1489,   1497    (1895).] 

See,  also,  post  in  this  chapter,  under  the  head.  Bankruptcy,  for  further 
examples  of  fixtures  passing  by  mortgage  of  the  land;  also  Pierce  v. 
George,  108  Mass.,  78  (1871);  Wiltshear  v.  Cottrell,  1  Ell.  &  Bl.,  674 
(1853)  ;  Rogers  v.  Crow,  40  Mo.,  91  (1867)  ;  Eyall  v.  Eolle,  1  Atk.,  165 
(1749);  Theurer  v.  Nautre,  23  La.  Ann.,  749  (1871);  Citizens'  Bank  v. 
Knapp,   22  id.,  117    (1870). 

[See,  generally,  as  to  fixtures  passing  with  a  grant  of  the  land.  Stead 
V.  Knowles,  79  Ala.,  446,  448  (1885);  Newland  v.  Baker,  26-Kan.,  341, 
345  (1881);  Chase  v.  Wingate,  68  Me.,  204,  205  (1878);  Southbridge 
Bank  v.  Mason,  147  Mass.,  500  (1888)  ;  Fe  Mayor  of  New  York,  39  App. 
Div.,  589,  595  (N.  Y.,  1899);  Wilson  v.  Steel,  13  Phila.,  153  (1879);  Ee 
Perkins'  Est.,  26  Atl.,  637  (Vt.,  1893);  Be  Yates  (1888),  38  Ch.  D.,  112. 
For  the  same  rule  in  regard  to  growing  crops,  see,  ante,  p.  *252.] 

1  Colgrave  v.  Dias  Santos,  2  B.  &  C,  76  (1823)  ;  Ex  parte  Belcher,  4  Dea. 
&  Chit.,  714  (1835),  where  Erskine,  C.  J.,  criticises  Ex  parte  Quincy,  1 
Atk.,  477  (1750);  Ex  parte  Price,  2  Mont.  Dea.  &  DeG.,  518  (1842); 
Walmsley  (or  Walmisley)  v.  Milne,  7  C.  B.  (N.  S.),  115  (1859);  Mather 
V.  Eraser,  2  Kay  &  J.,  552  (1856)  ;  Union  Bank  v.  Emerson,  15  Mass., 
159  (1818);  Meyer  v.  Betz,  3  Robt.  (N.  Y.),  172  (1865).  [See  post, 
p.  "311.  Sword  V.  Low,  122  111.,  487,  502  (1887);  Richards  v.  Gilbert, 
116  Ga.,  382,  385  (1902);  Horn  v.  Indianapolis  Nat.  Bank,  125  Ind.,  381, 
389  (1890);  Omaha  B.  &  T.  R'y  Co.  v.  Whitney,  99  N.  W.,  525  (Neb., 
1904);  Bennett  v.  Bagley,  29  Supr.  Ct.  (22  Hun),  408,  410  (N.  Y.,  1880); 
Shclton  V.  Ficklin,  32  Gratt.,  727  (Va.,  1880)  ;  First  Nat.  Bank  of  Brad- 
dock  V.  Hyer,  46  W.  Va.,  13    (1899);   Be  Trethowan    (1877),   5  Ch.  D., 

559.] 

When  the  land  and  the  article  annexed  thereto  are  held  by  diflferent  titles 
and  in  different  interests,  the  annexation  is  held  to  be  personalty,  and 
hence  not  to  pass  by  a  mortgage  of  the  interest  in  the  land  not  mention- 

309 


•276  THE  LAW  OP  FIXTURES.  [CUAP.   IX. 

iug  the  thing  annexed.  Adams  v.  Lee,  31  Mich.,  440  (1875),  cited  ante 
p.  •46.  [Borhmd  v.  TIahii,  25  N.  Y.  Supp.,  131  (1893);  see,  also,  Mer- 
chants' Nat.  Bank  v.  Stanton,  59  Minn.,  53:2,  537  (1894).  While  machinery 
annexed  by  a  firm  to  real  estate  owned  by  a  partnership,  becomes  part  of 
it,  if  the  real  estate  owned  by  the  partners  as  tenants  in  common  is  not 
partnership  property,  the  firm  would  have  the  same  right  of  removal  as 
a  tenant.  '  *  The  same  reasons  exist  for  encouraging  the  partners  to  make 
the  best  possible  use  of  their  possession,  by  protecting  them  in  their  ex- 
penditures upon  the  hind  so  far  as  it  may  be  consistent  with  justice  to 
others;  and  neither  the  owners  of  the  fee  nor  their  creditors  are  wronged 
by  the  removal  of  the  fixtures,  any  more  than  they  would  be  if  the  occu- 
pant had  with  them  no  relations  whatever  but  those  of  tenancy."  Kob- 
ertson  v.  Corsett,  39  Mich.,  777,  784  (1878).  Where  the  grantor  of  a  lot 
owned  machinery  thereon  in  common  with  the  owner  of  the  adjoining 
lot,  and  such  machinery  was  intended  to  be  permanent  and  was  used  in 
connection  with  the  adjoining  lot,  and  was  very  valuable  in  place,  but  of 
little  value  if  removed,  the  grantee  can  insist  upon  its  removal  as  against 
the  adjoining  lot-owner  who  claimed  an  easement,  or  that  he  owned  the 
machinery  as  real  estate.  Grove  v.  Barclay,  12  Phila.,  315  (1878).  Where 
the  equitable  title  to  land  is  in  one  person,  and  the  ownership  of  chattels 
in  another,  the  latter  do  not  pass.  Henkle  v.  Dillon,  15  Ore.,  610,  616 
(1888).  A  manufacturing  firm,  consisting  of  two  partners,  occupied  as 
tenants  part  of  a  building  of  which  one  of  the  partners  was  owner  of 
an  undivided  interest.  Subsequently  the  other  partner  bought  the  building, 
giving  a  mortgage  to  the  grantors,  and  he  afterwards  bought  the  interests 
of  the  firm.  Held,  that  the  machinery,  which  was  originally  trade-fixtures, 
was  not  brought  within  the  mortgage  upon  the  entire  interest  therein 
being  acquired  by  the  mortgagor.  Price  v.  Jenks,  14  Phila.,  228  (1880). 
Where,  after  a  mortgagee  takes  possession  of  a  mill  under  a  mortgage 
thereof  given  by  a  firm,  one  of  the  partners  claims  and  is  allowed  to  remove 
certain  machinery  as  his  own  and  retain  it  for  two  years,  and,  upon  request, 
such  partner  reimburses  the  mortgagee  for  taxes  paid  by  him  upon  such 
machines,  the  mortgagee  waives  all  right  to  claim  them  as  a  part  of  the 
realty.  Foster  v.  Prentiss,  75  Me.,  279  (1883).  Where  land  is  mortgaged 
by  those  holding  the  legal  title,  and  the  machinery  attached  thereto  is 
mortgaged  by  the  equitable  owner  of  the  land  in  possession,  there  is 
essential  unity  of  title  so  that  the  question  of  separate  ownership  can  not 
affect  the  character  of  fixtures,  one  of  the  parties  afterwards  obtaining 
title  to  both  the  land  and  the  machinery.  Watson  v.  Watson  Mfg.  Co.,  30 
N.  J.  Eq.,  483,  487  (1879).  In  London  Loan  Co.  v.  Pulford,  8  Ont.  Pr., 
150,  153  (1879),  the  rule  that  articles  annexed  do  not  pass  with  the 
land  where  they  are  held  by  different  titles,  is  not  followed.] 

The  case  of  Trappes  v.  Harter,  3  Tyrwh.,  603  (1833)  ;  s.  c,  2  Cr.  &  M., 
153;  3  L.  J.  (N.  S.),  Exch.,  24,  seems  to  have  been  decided  upon  its  own 
special  facts,  and  upon  the  ground  that  it  was  not  intended  that  the  ma- 
chinery in  question  should  pass  by  the  mortgage.  See  the  case  doubted, 
criticised  and  explained  in  Minshall  v.  Lloyd,  2  M.  &  W.,  450,  456  (1837); 

400 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *276 

Wilde  V.  Waters,  16  C.  B.,  637,  647  (1855)  ;  Walmsley  v.  Milne,  7  C.  B. 
(N.  S.),  133,  134  (1859);  Cullwick  v.  Swindell,  L.  K.,  3  Eq.,  249  (1866); 
Ex  parte  Barclay,  5  DeG.  M.  &  G.,  413  (1855) ;  Ex  parte  Bentley,  2  M.  D. 
&  DeG.,  597   (1842). 

[Where,  by  a  clause  in  a  deed  conveying  real  estate,  a  boiler  is  expressly 
excepted  from  its  operation,  the  vendee  can  not  claim  the  boiler  as  a  fix- 
ture.    Badger  v.  Batavia  Paper  Mfg.  Co.,   70  111.,  302,  306   (1873).] 

[Where  the  intention  is  that  the  grantee  shall  only  take  the  interest  of 
his  grantor  to  machinery  and  fixtures,  as  is  shown  by  a  clause  in  the  deed, 
he  acquires  no  title  to  machines  which,  as  between  the  grantor  and  a  third 
party,  belong  to  the  latter.     Foster  v.  Prentiss,  75  Me.,  279   (1883).] 

[A  grantee  of  land  who  is  notified  that  boilers  thereon  had  never  been 
paid  for,  and  who  does  not  pay  an  increased  price  on  account  •*  the 
boilers,  can  not  claim  them  as  against  the  seller  from  whom  they  have 
been    obtained    by    fraud.      Hacker    v.    Munroe,    61    111.    App.,    420,     425 

(1895).] 

[Where  an  engine  and  boiler  were  mortgaged  and  sold  as  chattels  so 
as  to  give  the  purchaser  a  right  to  remove  them  as  against  the  land  owner, 
a  purchaser  of  the  land  at  execution  sale  acquires  no  greater  right  than  the 
land  owner.  Sisson  v.  Hibbard,  75  N.  Y.,  542  (1879),  aff'g  17  Supr.  Ct. 
(10  Hun),  420   (1877).] 

[Platform  scales  resting  upon  a  foundation,  eight  by  twelve  feet,  sunk 
three  feet  into  the  ground,  were  placed  in  the  street  in  front  of  a  lot  by 
the  owners  thereof  after  obtaining  consent  of  the  village  council.  Held, 
that  the  necessity  of  permission  to  erect  the  scales,  and  the  fact  that 
they  could  only  remain  there  during  sufferance,  was  inconsistent  with  an  in- 
tent to  annex  them  permanently,  and  they  did  not  become  a  part  of  the 
real  estate,  and  did  not  pass  to  the  grantee  of  the  lot.  O  'Donnell  v.  Bur- 
roughs, 55  Minn.,  91,  94  (1893).] 

[Where  a  grantor  knew  that  the  house  upon  the  premises  was  to  be  con- 
verted into  a  planing-mill,  but  took  no  steps  to  obtain  a  lien  for  unpaid 
purchase-money  upon  the  machinery  placed  therein,  only  stipulating  that 
the  building  should  be  kept  insured  and  reserving  a  lien  thereon,  can 
not  claim  to  have  looked  to  the  machinery  as  security  when  he  did  not 
know  whether  it  would  ever  be  annexed.  Clore  v.  Lambert,  78  Ky.,  224, 
231   (1879).] 

[Where,  upon  the  conveyance  and  mortgage  of  land,  it  was  orally  agreed 
by  all  parties  that  a  third  party,  advancing  money  to  make  the  cash 
payment,  should  have  a  marine  railway  upon  the  land,  the  mortgagee 
acquires  no  right  thereto  although  it  would  have  been  covered  by  the 
mortgage  in  the  absence  of  such  agreement.  Tyson  v.  Post,  108  N.  Y., 
217   (1888),  aff'g  22  N.  Y.  Wkly.  Dig.,  492    (Supr.  Ct.,   1885).] 

[A  mortgagee  released  property  which  was  sufficient  security  for  the 
debt,  and  took  a  mortgage  upon  vacant  land  in  place  thereof,  which  was 
not  sufficient  security,  relying  upon  the  erection  of  a  stone  building 
thereon  by  the  mortgagors  which  would  make  it  sufficient;  but  the  mort- 
gagors did  not  bind  themselves  to  build.  The  mortgagors  erected  a  frame 
20  401 


•276  THE  L.VW  OF  FIXTURES.  [CHAP,    IX. 

by  a  sale  of  the  laud  on  execution,  the  rule  in  such  a  case  being 
the  same  as  in  the  case  of  a  private  sale.^    The  rule  is  the  same 

Iniilding  of  little  value,  anil  placed  machinery  therein.  Held,  that  there 
was  no  intention  shown  to  make  tho  machines  part  of  the  realty.  The  fact 
that  instead  of  a  stono  building,  a  wooden  building  of  as  little  value  as 
possible  was  erected,  w'ould  show  a  design  to  have  machines  placed  therein 
remain  chattels.     Keefer  v.  Merrill,  6  Up.  Can.  Ai)p.,  121   (1881).] 

[A  tenant,  having  the  right  to  remove  trade-fixtures,  purchased  the 
land  subject  to  a  mortgage.  Held,  that,  although  the  estate  for  years 
merged  in  the  fee,  it  did  not  follow  that  the  trade-fixtures,  Tbeing  chattels, 
became  a  part  of  the  realty,  so  as  to  pass  on  foreclosure  of  the  mortgage, 
but  an  intention  would  be  presumed  that  they  were  personal  property; 
and  where  the  fixtures  were  mortgaged  as  chattels,  and  notice  given  at 
the  foreclosure  sale  of  the  land,  there  was  nothing  to  indicate  a  change  of 
intention.     Globe  Marble  Co.  v.  Quinn,  76  N.  Y.,  23   (1879).] 

[Mill  machinery  was  sold  under  an  agreement  that,  although  affixed  to 
the  freehold  of  the  buyer,  it  was  to  remain  the  property  of  the  seller  until 
paid  for.  By  farther  agreement  the  buyer  was  to  give  a  mortgage  upon 
the  land  to  secure  the  indebtedness,  and  to  insure  the  buildings.  The  mort- 
gage was  given,  and  the  buyer  insured  the  building  and  machinery  in  his 
own  name.  The  building  and  machinery  being  destroyed  by  fire,  the 
mortgagor  and  mortgagee  each  claimed  the  insurance  money  on  the  ma- 
chinery. Held,  by  a  divided  court,  that,  as  tho  machinery  was  personal 
property  between  the  parties,  it  was  not  covered  by  the  mortgage,  nor  was 
the  mortgagee  entitled  to  any  insurance  money  except  that  upon  the 
building  itself,  as,  under  the  agreement,  the  machinery  was  not  a  part  of 
the  building.  Watrous  Engine  Co.  v.  McCann,  21  Ont.  App. ,  486 
(1894).] 

[Where  the  state  sold  a  canal,  the  purchasers  taking  a  fee,  the  grant 
did  not  include  a  bridge  over  the  canal,  which  formed  a  part  of  a  public 
highway.     Shirk  v.  Board  of  Commissioners,  106  Ind.,  573   (1886).] 

[The  owner  of  a  new  subdivision  placed  water-mains  in  the  streets 
thereof  for  the  purpose  of  supplying  it  with  water  from  a  water  works 
plant  in  the  neighborhood.  Subsequently  the  subdivision  was  vacated,  and 
was  sold  as  farming  land.  Held,  that  the  grantee  acquired  no  title  to  the 
water-mains.  Dodge  City  Water  Co.  v.  Alfalfa  Land  Co.,  64  Kan.,  247 
(1902).] 

[See,  Tpost,  p.  *316,  as  to  the  effect  of  notice  to  a  grantee  of  land,  of 
ownership  by  others  of  articles  annexed  thereto.] 

2  0ves  V.  Ogelsby,  7  Watts,  106  (1838);  so  held  as  against  one  levying 
upon  the  engine  as  personalty;  Farrar  v.  Chauffetete,  5  Den.,  529  (1848); 
Moore  v.  Smith,  24  111.,  512  (I860);  Trull  v.  Fuller,  28  Me.,  545  (1848),  a 
clapboard  machine  and  shingle  machine,  fastened  to  the  floor  respectively 
by  knees,  and  by  spikes  or  nails,  and  keys;  Strickland  v.  Parker,  54  Me., 
263  (1866),  where  a  marine  railway  (consisting  of  rails  and  sleepers,  end- 
less chain,  gear,  wheels  and  ship-cradle),  laid  on  earth  and  affixed  thereto 

402 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *277 

*in  the  case  of  the  conveyance  or  mortgage  of  a  leasehold  [*277] 
without  mentioning  the  fixtures,  which,  though  removable  as 
against  the  landlord,  pass  unless  a  contrary  intention  appears.^ 

in  the  usual  manner,  the  road-bed  so  far  as  one  was  required,  being  made 
of  and  by  the  earth,  was  held  to  be  a  fixture,  and  to  pass  by  a  levy  and 
sale  of  real  estate  on  execution.  See,  also,  Symonds  v.  Harris,  51  Me.,  14 
(1862);  Boyle  v.  Swanson,  6  La.  Ann.,  263  (1851).  [Thomson  v.  Smith, 
111  Iowa,  718,  719  (1900);  Stillman  v.  Flenniken,  58  Iowa,  450,  454 
(1882) ;  see,  also.  Wilder  v.  Kent,  15  Fed.,  217  (U.  S.  C.  C,  Fa.,  1883)  ; 
Keve  V.  Faxton,  26  N.  J.  Eq.,  107  (1875),  an  engine  and  boiler  resting 
upon  foundations;  Ee  Welch,  108  Fed.,  367,  368  (U.  S.  Dist.  Ct.,  N.  Y., 
1901),  an  engine,  boiler,  machinery  and  shafting,  secured  by  cement,  bolts 
or  screws;  Newhall  v.  Kinney,  56  Vt.,  591  (1884),  a  circular  saw  mill; 
Whitney  v.  Huntington,  34  Minn.,  458,  461  (1886),  timber  and  buildings. 
For  the  same  rule  as  to  growing  crops,  see,  ante,  p.  *253.] 

Fixed  machinery  in  a  mill  and  everything  so  annexed  to  the  freehold  as 
to  pass  by  a  levy  thereon,  must  be  presumed  in  the  absence  of  such  a  clear 
preponderance  of  testimony  as  will  enable  the  court  to  find  the  contrary,  to 
have  been  taken  into  consideration  by  the  appraisers  in  estimating  the 
value  of  the  property  under  such  levy.  It  is  not  necessary  that  appraisers 
should  make  a  schedule  and  estimate  each  piece  of  machinery  separately. 
Fayne  v.  Farmers'  and  Citizens'  Bank,  29  Conn.,  415    (1861). 

[Improvements  upon  land  pass  under  an  execution-sale  although  made 
with  money  secured  by  a  mortgage  after  the  judgment  lien  attached.  Flynn 
V,  Wilkinson,  56  111.  App.,  239,  241   (1894).] 

[A  purchaser  of  land  at  a  tax-sale  does  not  acquire  the  superstructure  of 
a  railroad  thereon.  Illinois  Central  R.  R.  Co.  v.  LeBlanc,  74  Miss.,  650, 
673   (1897).] 

3  See  Longstafif  v.  Meagoe,  2  Ad.  &  Ell.,  167  (1834)  ;  Williams  v.  Evans, 
23  Beav.,  239  (1856)  ;  Day  v.  Ferkins,  2  Sandf.  Ch.,  359  (1845)  ;  Breese  v. 
Bange,  2  E.  D.  Smith,  474  (1854)  ;  Ex  parte  Astbury,  L.  R.,  4  Ch.  App., 
630,  637  (1869)  ;  s.  C,  38  L.  J.  (N.  S.),  Bank.,  9;  20  L.  T.  (N.  S.),  997; 
17  W.  R.,  997.  See,  also,  Burton  v.  Brown,  Cro.  Jac,  648  (1622).  [San 
Francisco  Breweries  v.  Sehurtz,  104  Cal.,  420,  427  (1894)  ;  Commercial 
Bank  v.  Pritchard,  126  Cal.,  600,  605  (1899);  Fletcher  v.  Kelly,  88  Iowa, 
475,  486  (1893)  ;  Gill  v.  Weston,  110  Pa.  St.,  312,  316  (1885)  ;  Weltman  v. 
August,  11  Tex.  Civ.  App.,  604,  605  (1895);  Paterson  v.  Pyper,  20  Up. 
C,  C.  P.,  278,  282  (1870)  ;  Davy  v.  Lewis,  18  U.  Can.,  Q.  B.,  21;  He  Lusty 
(1889),  60  Law  T.  R.,  160;  Bank  of  Victoria  v.  Langlanda  Co.,  24  Vict., 
230,  249  (1898);  Colonial  Bank  v.  Riley,  22  Vict.  L.  R.,  288,  296  (1896); 
Australian  Bank  v.  Colonial  Corp.,  15  N.  S.  W.  L.  R.,  464  (1894)  ;  see,  also, 
Towson  v.  Smith,  13  App.,  D.  C,  48,  56  (1898)  ;  Warner  v.  Don,  26  Can., 
388  (1896),  aff'g  Don  v.  Warner,  28  Nova  S.,  202,  204  (1896);  Reynolds 
V.  Ashby  [1903],  1  K.  B.,  87.] 

See,  however,  (lictum  of  Malins,  V.  C,  in  Bcgbic  v.  Fenwick,  L.  R.,  8 
Ch.  App.,  1075,  1076,  note;  s.  C,  24  L.  T.   (N.  S.),  58;  25  L.  T.  (N.  S.), 

403 


•277  THE  LAW  OF  FIXTURES.  [CHAP,   IX. 

441 J  Blackburn  and  Lush,  JJ.,  in  llawtry  v.  Butlin,  21  W.  R.,  633  (1873); 
S.  C,  42  L.  J.  Q.  B.,  1(53;  L.  R.,  8  Q.  B.,  290;  28  L.  T.  (N.  S.),  532. 

[But  the  mortgagee  is  only  entitled  to  the  use  of  the  fixtures  during  the 
term.     Southport  Baking  Co.  v.   Thompson    (1887),   37   Ch.   D.,   64.] 

[A  frame  warehouse,  forty  by  one  hundred  feet,  with  concrete  founda- 
tion, will  be  presumed  to  rest  upon  the  land,  and  be  real  estate  within 
Sees.  658  and  660  of  the  Civ.  Code,  which  provide  that  a  thing  is  deemed 
to  be  affixed  to  land  when  it  is  permanently  resting  upon  it,  and  that  which 
is  affixed  to  land  is  real  property.  Commercial  Bk.  v.  Pritchard,  126  Cal., 
600,  605    (1899).] 

[A  building  erected  by  a  tenant,  whether  or  not  he  has  a  right  of 
removal,  attaches  to  the  leasehold,  and  is  subject  to  a  lien  of  a  judgment 
which  is  prior  to  a  chattel  mortgage  of  the  building.  Hayden  v,  Goppinger, 
67  Iowa,  106,  107   (1885).] 

[A  one  and  one-half  story  frame  house  erected  by  a  tenant  under  an 
agreement  giving  him  the  right  of  removal,  attaches  to  the  leasehold  so  as 
to  give  him  a  homestead  therein,  although  the  house  is  mortgaged  and 
taxed  as  personal  property.     Hogan  v.  Manners,  23  Kan.,  551   (1880).] 

But  "where  a  stipulation  is  made  that  fixtures  are  to  be  taken  at  a 
valuation,  that  shows  that  they  are  not  otherwise  to  pass."  Per  Best,  J., 
in  Colegrave  v.  Dias  Santos  (supra). 

The  acceptance  of  a  demise  of  a  house  containing  fixtures  does  not  raise 
an  implied  promise  to  pay  for  such  fixtures.  Where  a  house  is  let  contain- 
ing fixtures,  it  will  be  a  question  whether  they  are  let  as  a  part  of  the 
house  or  delivered  upon  a  separate  contract  of  sale.  Goff  v.  Harris,  5  Man. 
&  G.,  573  (1843).     [See  Lewis  v.  Seabury,  74  N.  Y.,  409   (1878).] 

But  in  the  absence  of  an  agreement  to  the  contrary,  a  tenant  leasing 
premises  to  which  fixtures  are  attached  at  the  time  of  the  demise,  is  entitled 
to  the  possession  of  the  premises  at  the  specified  time  in  the  same  condition 
in  which  they  were  demised;  and  if  the  lessor  wrongfully  removes  such 
fixtures  (a  cistern  in  this  case)  before  the  term  is  to  commence,  leaving  the 
house  unfit  for  habitation,  the  lessee  may  refuse  to  take  possession  and  to 
pay  the  rent.  Cleves  v.  Willoughby,  7  Hill,  83  (1845).  [See,  also,  Emery 
V.  Fugina,  68  Wis.,  505  (1887) ;  Cameron  v.  Tarratt,  1  Up.  Can.,  Q.  B., 
312.] 

[If  the  landlord  removes  fixtures  before  the  tenant  takes  possession,  he 
is  responsible  in  an  action  of  tort.  Sachs  v.  Henderson  [1902],  1  K.  B., 
612.] 

[A  lessee  of  mines  and  minerals,  being  entitled  to  use  the  surface  for 
all  incidental  purposes,  is  not  entitled  to  use  houses  and  engines  thereon 
which  are  the  property  of  the  lessor.  Hayles  v.  Pease  (1899),  68  L.  J. 
Ch.,  222.] 

[Cases,  ten  feet  high  and  thirty  feet  long,  containing  drawers  below 
and  shelving  and  mirrors  above,  nailed  to  the  wall,  and  corresponding  in 
color  to  the  woodwork  of  the  room,  were  in  a  room  at  the  time  a  lease 
thereof  was  made.  Held,  not  to  pass  under  the  lease  although,  when  re- 
moved, it  left  the  wall  back  of  them  without  paint  or  baseboard,  and 
somewhat  broken.     Kimball  v.  Grand  Lodge,  131  Mass.,  59  (1881).] 

404 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *278 

*In  like  manner  tenant's  fixtures,  though  removable  by  [*278] 
the  tenant  as  against  the  landlord  at  the  end  of  the  term,  pass 
as  a  part  of  the  security  by  the  deposit  of  a  lease  by  way  of 
equitable  mortgage,  although  they  are  not  mentioned  in  the 
*memorandum  of  deposit.^  And  it  makes  no  difference  [*279] 
that  the  fixtures  are  of  the  kind  called  trade  fixtures,  that  cir- 
cumstance being  of  importance  only  in  questions  depending  be- 
*tween  landlord  and  tenant,  and  having  no  effect  upon  [*280] 
those  arising  between  mortgagor  and  mortgagee;  and  the  rule 
is  the  same  in  this  respect  whether  the  mortgage  be  in  fee,  by 
way  of  lease  for  a  term  of  years,  or  of  a  leasehold  interest 
only.2  So,  it  makes  no  difference  that  such  fixtures  have  been 
erected  since  the  execution  or  deposit  of  the  lease  by  way  of 

^Ex  parte  Cowell,  12  Jur.,  411  (1848);  Ex  parte  Broadwood,  1  Mont. 
Dea.  &  DeG.,  631  (1841);  Ex  parte  Tagart,  DeG.,  531  (1847);  Meux  v. 
Jacobs,  L.  E:,  7  Eng.  &  Ir.  App.,  481  (1875);  s.  c,  44  L.  J.,  Ch.,  481; 
23  W.  E.,  526;  22  W.  E.,  609   (n). 

The  rule  is  the  same  where  there  is  simply  a  deposit  of  the  lease  unac- 
companied by  any  memorandum.    Williams  v.  Evans,  23  Beav.,  239  (1856). 

[Where  there  are  no  words  used  dealing  expressly  with  fixtures  they 
pass  to  the  mortgagee,  because  they  are  considered  to  be  part  of  the  land, 
and  the  same  interest  must  pass  in  them,  and  no  more,  as  passes  in  the  land 
itself.  Hence,  where  a  tenant  mortgaged  his  term,  and  afterwards  made 
an  assignment  for  the  benefit  of  his  creditors,  and  his  assignee  sold  the 
fixtures,  the  mortgagee  is  not  entitled  to  the  proceeds,  as  he  had  no  more 
interest  in  the  fixtures  than  in  the  land.  Colonial  Bank  v.  Eiley,  22  Viet. 
L.  R.,  288  (1896).] 

2  21  IT.  7,  26  b  (1506)  ;  Ex  parte  Broadwood  (supra) ;  Ex  parte  Belcher, 
2  Mont.  &  Ayr.,  166  (1835);  s.  c,  4  Dea.  &  Chit.,  703;  4  L.  J.  (N.  S.), 
Bank.,  29;  Climie  v.  Wood,  L.  R.,  3  Exch.,  257;  s.  C,  37  L.  J.  (N.  S.), 
Exch.,  158;  18  L.  T.  (N.  S.),  609;  L.  E.,  4  Exch.,  328  (1869);  38  L.  J. 
(N.  S.),  Exch.,  223;  20  L.  T.  (N.  S.),  1012;  Meux  v.  Allen,  22  W.  R.,  609, 
note  (1874);  Longbottoin  v.  Berry,  L.  E.,  5  Q.  B.,  123  (1869);  s.  C,  39 
L.  J.  (N.  S.),  Q.  B.,  37;  10  B.  &  S.,  584;  22  L.  T.  (N.  S.),  385;  Walmsley 
(or  Walmisley)  v.  Milne,  7  C.  B.  (N.  S.),  115  (1859)  ;  6  Jur.  (N.  S.),  125; 
1  L.  T.  (X.  S.),  62;  29  L.  J.  C.  P.,  97;  23  Month.  Law  Ecp.,  630;  8  Am, 
Law  Reg.,  373;  Ex  parte  Price,  2  Mont.  Dea.  &  DoG.,  518  (1842);  Cull- 
wick  V.  Swindell,  L.  R.,  3  Eq.  Ca.,  249  (1866)  ;  Holland  v.  Hodgson,  L.  R., 
7  C.  P.,  328  (1872);  Day  v.  Perkins,  2  Sandf.  Ch.,  359  (1845);  Oves  v. 
Ogelsby,  7  Watts,  106  (1838)  ;  Moore  v.  Smith,  24  111.,  512  (1860),  holding 
that  trade  fixtures  pass  l)y  a  sale  of  property  under  a  docroe  to  enforce  a 
mechanics'  lien,  unless  reserved.  See  s.  c,  26  III.,  392;  I'.iwc]]  v.  Striker, 
Sup.  Ct.  N,  Y.,  12  Law  Reporter,  366  (1849);  Harkness  v.  Sears,  26  Ala., 
493   (IS.'JS).     See,  also,  Millikin  v.  Armntrong,   17   Ind.,  456   (1861);   Ileer- 

405 


*281  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

[*281]  *inortp;ag:c.^  Indeed,  it  is  a  fyeneral  rule  that  fixtures 
annexed  subseiiiiently  to  the  execution  of  the  mortgage  become 
a  part  of  the  mortgage  security  and  bound  thereby.-*  And 
hence  (at  least  in  those  States  where  a  mortgage  is  considered  a 
conveyance  of  the  hind  and  not  a  mere  security),  they  may  not 

mance  v.  Vernoy,  6  John.,  5  (1810);  Teaff  v.  Hewitt,  1  Ohio  St.,  535 
(1853);  Farrar  v.  Chauffetete,  5  Den.,  527,  531  (1848),  and  post  in  this 
chapter  in  note.  [Ee  Mayor  of  New  York,  39  App.  Div.,  589,  595  (N.  Y., 
1899);  McDonald  v.  Weeks,  8  Gr.  Ch.,  297,  299  (Ont.,  1860);  London 
Loan  Co.  v.  Pulford,  8  Out.  Pr.,  150,  152  (1879);  Ee  Calvert  [1898],  2 
I.  E.,  501,  505;  Southport  Banking  Co.  v.  Thompson  (1887),  37  Ch.  D., 
64;  see,  also,  McCrillis  v.  Cole,  55  Atl.,  196,  197  (R.  I.,  1903);  Paine  v. 
McDowell,  71  Vt.,  28,  32  (1898);  Tottenham  v.  Swansea  Ore  Co.  (1885), 
52  Law  T.  E.,  738,  739.] 

3  Ex  parte  Broadwood;  Meux  v.  Jacobs;  Ex  parte  Belcher  (swpra) ; 
McCluney  v.  Lemon,  Hayes,  154   (1831). 

[Where  the  mortgagor  of  a  leasehold  attorned  to  the  mortgagee  and 
afterwards  annexed  fixtures,  held,  that  the  attornment  was  for  further 
security,  and  that  the  fixtures  were  added  in  the  capacity  of  mortgagor 
and  not  as  tenant,  and  passed  to  the  mortgagee.  Ex  parte  Punnett  (1880), 
16  Ch.  D.,  226.] 

[As  between  a  mortgagee  of  a  leasehold  and  all  fixtures  "hereafter  to 
stand  or  to  be  upon  the  said  premises,"  and  a  seller  reserving  title  to 
fixtures  subsequently  annexed,  the  fixtures  are  not  covered  by  the  mort- 
gage.    Cumberland  Banking  Co.  v.  Maryport  Iron  Co.   [1892],  1  Ch.,  415.] 

4  Besides  the  authorities  above  cited,  see  Walmsley  v.  Milne,  7  C.  B.  (N. 
S.),  115  (1859)  ;  Ackroyd  v.  Mitchell,  3  L.  T.  (N.  S.),  236  (1860)  ;  Roberts 
V.  Dauphin,  etc..  Bank,  19  Penn.  St.,  71  (1852)  ;  Bowen  v.  Wood,  35  lud., 
268  (1871)  ;  Gardner  v.  Finley,  19  Barb.,  317  (1855)  ;  Hutchings  v.  Lathrop, 
Sup.  Ct.  Vt.  (1845),  8  Law  Eep.,  82;  Snedeker  v.  Warring,  12  N.  Y.,  170 
(1854);  Union  Water  Co.  v.  Murphy's  Flat  Pluming  Co.,  22  Cal.,  631 
(1863)  ;  Burnside  v.  Twitchell,  43  N.  H.,  390  (1861) ;  Sands  v.  Pfeiffer,  10 
Cal.,  258  (1858)  ;  Smith  v.  Goodwin,  2  Me.,  173  (1822)  ;  McKim  v.  Kennedy, 
3  Md.  Ch.  Dec,  186  (1852),  so  held  as  between  mortgagee  and  parties  claim- 
ing a  mechanics'  lien,  who  were  postponed  to  the  prior  mortgage;  Ex  parte 
Price,  2  Mont.  Dea.  &  DeG.,  518  (1842)  ;  Cullwick  v.  Swindell,  L.  R.,  3  Eq. 
Ca.,  249   (1866). 

In  like  manner,  fixtures  erected  upon  land  by  the  debtor,  after  a  sale 
under  execution,  and  before  the  execution  of  the  sheriff's  deed,  pass  with 
the  land  to  the  purchaser.     Hayes  v.  N.  Y.  Mining  Co.,  2  Col.,  273  (1874). 

[The  following  cases  sustain  the  rule  laid  down  in  the  text:  Galveston 
E.  E.  V.  Cowdrey,  78  U.  S.,  459,  482  (1870);  Seedhouse  v.  Broward,  34 
Fla.,  509,  523  (1894);  Williams  v.  Chicago  Exhib.  Co.,  188  111.,  19,  29 
(1900);  Cable  v.  Ellis,  120  111.,  136,  153  (1887);  Wood  v.  Whelen,  93  111., 
153,   169    (1879);    Matzon  v.   Griffin,   78   111.,   477,   480    (1875);    Mann  v. 

406 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *281 

Mann,  49  111.  App.,  472,  482  (1893)  ;  Powell  v.  Eogers,  11  111.  App.,  98, 
103  (1882);  Hamilton  v.  Huntley,  78  lud.,  521,  527  (1881);  Travellers 
Ins.  Co.  V.  Patten,  98  IncL,  209,  216  (1884)  ;  Marshall  v.  Stewart,  80  Ind., 
189,  195  (1881);  Catterlin  v.  Armstrong,  79  Ind.,  514,  522  (1881);  Mutual 
Benefit  Ins.  Co.  v.  Huntington,  57  Kan.,  744,  749  (1897) ;  Bank  of  Louis- 
ville V.  Baumeister,  87  Ky.,  6,  15  (1888)  ;  Harris  v.  Youngstown  Bridge 
Co.,  90  Fed.,  322,  332  (U.  S.  C.  C.  A.,  Ky.,  1898)  ;  N.  O.  Nat.  Bank  v. 
Eaymond,  29  La.  Ann.,  355,  358  (1877)  ;  Lee  v.  Kendall,  Manning  (La.), 
19,  20;  Citizens  Bank  v.  Maureau,  37  La.  Ann.,  857,  861  (1885);  Payne  v, 
Anderson,  35  La.  Ann.,  977,  979  (1883) ;  Phinney  v.  Day,  76  Me.,  83,  85 
(1884)  ;  Wight  v.  Gray,  73  Me.,  297  (1882)  ;  Humphreys  v.  Newton,  51 
Me.,  40,  51  (1863)  ;  Be  Holland,  2  Haskell,  90,  92  (U.  S.  Dist.  Ct.,  Me., 
1876);  Smith  Paper  Co.  v.  Servin,  130  Mass.,  511,  513  (1881);  National 
Bank  of  Sturgis  v.  Levanseler,  115  Mich.,  372,  377  (1897)  ;  Merchants  Bank 
V.  Stanton,  62  Minn.,  204,  205  (1895);  Ivy  v.  Yancey,  129  Mo.,  501,  510 
(1895);  State  Sav.  Bank  v.  Kercheval,  65  Mo.,  682  (1877);  Johnston  v. 
Morrow,  60  Mo.,  339  (1875);  Dutro  v.  Kennedy,  9  Mont.,  101,  107  (1889); 
Bean  v.  Brackett,  34  N.  H.,  102,  118  (1856)  ;  Tate  v.  Field,  57  N.  J.  Eq., 
53,  55  (1898)  ;  Delaware,  L.  &  W.  E.  E.  Co.  v.  Oxford  Iron  Co.,  36  N.  J. 
Eq.,  452,  455  (1883)  ;  Mutual  Life  Ins.  Co.  v.  Dowden,  3  Atl.,  351  (N.  J. 
Ch.,  1885);  Jackson  ads.  Turrell,  39  N.  J.  Law,  329,  331  (1877);  Mc- 
Fadden  v.  Allen,  134  N.  Y.,  489,  491  (1892),  aflf'g  57  Supr.  Ct.  (50  Hun), 
361  (1888)  ;  Hart  v.  Sheldon,  41  Supr.  Ct.  (34  Hun),  38,  40  (N.  Y.,  1884)  ; 
Sullivan  v.  Toole,  33  Supr.  Ct.  (26  Hun),  203,  204  (N.  Y.,  1882);  Cooper 
V.  Harvey,  16  N.  Y.  Supp.,  660,  663  (1891);  Phoenix  Mills  v.  Miller,  4 
N.  Y.  St.  E.,  787,  790  (1886);  Eice  v.  Dewey,  54  Barb.,  455,  472  (N.  Y., 
1862);  Clark  v.  Hill,  117  N.  C,  11,  12  (1895);  Foote  v.  Gooch,  96  N.  C, 
265,  270  (1887);  Browne  v.  Davis,  109  N.  C,  23,  28  (1891);  Inverarity 
V.  Stowell,  10  Ore.,  261,  264  (1882)  ;  Muehling  v.  Muchling,  181  Pa.  St., 
483,  491  (1897);  Morris's  App.,  88  Pa.  St.,  368,  384  (1879);  Oakland 
Cem.  Co.  v.  Bancroft,  161  Pa.  St.,  197,  199  (1894)  ;  Annely  v.  DeSaussure, 
12  S.  C,  488,  519  (1879);  Heath  v.  Haile,  45  S.  C,  642,  648  (1895); 
Bermca  Lumber  Co.  v.  Adoue,  20  Tex.  Civ.  App.,  655,  660  (1899)  ;  Kendall 
V.  Tracy,  64  Vt.,  522,  527  (1892)  ;  Hinckley  Iron  Co.  v.  James,  51  Vt.,  240, 
244  (1878)  ;  Graeme  v.  Cullen,  23  Gratt.,  266,  289  (Va.,  1873)  ;  Gunderson 
V.  Swarthout,  104  Wis.,  186  (1899);  Homestead  Land  Co.  v.  Becker,  96 
Wis.,  206,  213  (1897);  Eogers  v.  Ontario  Bank,  21  Ont.,  416,  418  (1891); 
Dickson  v.  Hunter,  29  Gr.  Ch.,  73,  80  (Ont.,  1881);  McQucsten  v.  Thomp- 
son, 2  Up.  Can.  Er.  &  App.,  167,  182  (1862);  Monti  v.  Barnes  [1901],  1 
K.  B.,  205,  208;  Irish  Bldg.  Soc.  v.  Mahony  (1876),  10  Irish  E.  Law,  363; 
see,  also,  Eoyman  v.  Henderson  Nat.  Bank,  17  Ky.  L.  E.,  1291  (1896); 
Citizens  Bank  v.  Miller,  44  La.  Ann.,  199,  205  (1892);  Brooks  v.  Prescott, 
114  Mass.,  392,  397  (1874)  ;  New  York  Security  Co.  v.  Saratoga  Light  Co., 
95  Supr.  Ct.  (88  Hun),  569  (N.  Y..  1895)  ;  Ilislop  v.  Joss,  3  Ont.  Law,  281, 
283  (1901)  ;  Philion  v.  Bisson,  23  Low.  Can.  Jur.,  32  (Super..  1878)  ;  Cross 
V.  Barnes  (1877),  46  L.  J.,  Q.  B.,  479,  480;  Cunningham  v.  Seaboard  Eealty 
Co.,  58  Atl.,  819  (N.  J.  Ch.,  1904).] 

407 


•281  THE  LAW  OF  FIXTURES.  [CHAP,   IX. 

[In  the  following  eases  the  mortgage  on  the  land  was  held  to  attach 
to  fixtures  subsequently  annexed  as  against  an  unpaid  seller  of  the  fixtures 
who  had  reserved  title:  Porter  v.  Pittsburg  Steel  Co.,  122  U.  S.,  267,  283 
(18S7),  denying  a  rehearing  of  120  U.  S.,  G-19,  671  (1886);  Watertown 
Steam  Engii.e  Co.  v.  Davis,  5  Houston,  192,  211  (Del.,  1877)  ;  Cunningham 
V.  Cureton,  96  Ga.,  489,  492  (1895)  ;  Fifield  v.  Farmers  Bank,  47  111.  App., 
118  (1892);  Bass  Foundry  Works  v.  Gallentinc,  99  Ind.,  525  (1884);  Ham- 
ilton V.  Huntley,  78  Ind.,  521,  527  (1881);  Evans  v.  Kister,  92  Fed.,  828, 
836  (U.  S.  C.  C.  A.,  Ky.,  1899) ;  Phoenix  Iron  Co.  v.  New  York  Trust  Co., 
83  Fed.,  757  (U.  S.  C.  C.  A.,  Ky.,  1897)  ;  New  York  Trust  Co.  v.  Capital 
R'y  Co.,  77  Fed.,  529  (U.  S.  C.  C,  Ky.,  1896);  Westinghouse  Elec.  Mfg. 
Co.  V.  Citizens  Street  R'y  Co.,  24  Ky.  L.  R.,  334  (1902);  Roddy  v.  Brick, 
42  N.  J.  Eq.,  218,  222  (1886)  ;  Wade  v.  Donau  Brew'g  Co.,  10  Wash.,  284, 
289  (1894);  Fuller-Warren  Co.  v.  Harter,  110  Wis.,  80  (1901);  Ontario 
Car  Co.  V.  Farwell,  18  Can.,  1  (1890)  ;  Gates  v.  Cameron,  7  Up.  Can.,  Q.  B., 
228,  232;  Ee  New  South  Wales  Cold  Storage  Co.,  12  N.  S.  W.  L.  R.  (Eq.), 
87  (1891)  ;  see,  also,  MeCrillis  v.  Cole,  55  Atl.,  196  (R.  I.,  1903)  ;  Laine  v. 
Beland,  26  Can.,  419  (1896),  aff'g  Beland  v.  Laine,  4  Q.  B.,  354  (Que., 
1895).] 

[In  the  following  cases  the  lien  of  the  mortgage  was  held  to  be  superior 
to  a  mechanics'  lien:  Monticello  Bank  v.  Sweet,  64  Ark.,  502  (1897); 
Fletcher  v.  Kelly,  88  Iowa,  475,  490  (1893);  Getehell  v.  Allen,  34  Iowa, 
559  (1872);  Lee  v.  Kendall,  Manning  (La.),  19,  20;  Schulenburg  v.  Hay- 
den,  146  Mo.,  583  (1898);  Russell  v.  Grant,  122  Mo.,  161,  175  (1894); 
Hoagland  v.  Lowe,  39  Neb.,  397  (1894);  Heidelbach  v.  Jacobi,  28  N.  J. 
Eq.,  544  (1877)  ;  Citizens  Nat.  Bank  v.  Strauss,  29  Tex.  Civ.  App.,  407, 
412  (1902);  Jessup  v.  Stone,  13  Wis.,  466,  471  (1861);  see,  also,  Choteau 
V.  Thompson,  2  Ohio  St.,  114,  127  (1853).  Where  a  holder  of  a  mechanics' 
lien  upon  a  lot  purchases  it  at  a  sale  on  foreclosure  thereof,  and  builds  a 
house  thereon,  and  a  writ  of  error  is  subsequently  sued  out  by  one  who  held 
a  mortgage  upon  the  lot  at  the  time  of  such  sale,  and  the  decree  of  sale 
is  reversed,  the  mortgagee  is  entitled  to  the  benefit  of  the  improvements. 
Powell  V.  Rogers,  11  111.  App.,  98,  103  (1882).  In  some  states,  by  statute, 
the  claim  of  mechanics  is  superior  to  that  of  the  mortgagee.] 

[The  rule  is  the  same  in  the  case  of  a  vendor's  lien  upon  land,  which 
attaches  to  all  improvements  afterwards  placed  thereon  which  become  a  part 
of  the  freehold.  Louisville  Bldg.  Ass'n  v.  Korb,  79  Ky.,  190,  197  (1880); 
Simpson  v.  Masterson,  31  S.  W.,  419  (Tex.  Civ.  App.,  1895);  Charleston 
Lumber  Co.  v.  Brockmyer,  18  W.  Va.,  586,  592  (1881).  A  vendor's  lien 
upon  land  attaches  to  a  house  built  thereon,  and  renders  an  insurance  policy 
upon  such  house  void  under  a  provision  in  the  policy  against  incumbrances. 
Curlee  v.  Texas  Home  Ins.  Co.,  73  S.  W.,  831  (Tex.  Civ.  App.,  1903).  A 
vendor's  lien  is  superior  to  a  mechanics'  lien.  Watson  v.  Markham,  77 
S.  W.,  660,  661  (Tex.  Civ.  App.,  1903).] 

[The  rule  stated  in  the  text  holds  as  against  one  letting  machinery  under 
a  hire  purchase  agreement.  Reynolds  v.  Ashby  [1903],  1  K.  B.,  87;  or  as 
against  the  owner  of  machinery  which  is  delivered  to  the  landowner  for 
trial.    Hamilton  v.  Huntley,  78  Ind.,  521,  524  (1881).     That  the  article  is 

408 


CHAP,   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *281 

not  paid  for  is  immaterial.     Coleman  v.  Stearns  Mfg.  Co.,  38  Mich.,  30,  37 
(1878).] 

[Money  advanced  to  pay  arrears  of  wages  of  laborers  who  had  become 
riotous  and  threatened  to  burn  the  hotel  building  erected,  does  not  create  a 
lien  superior  to  a  prior  mortgage.  Eaht  v.  Attrill,  106  N.  Y.,  423  (1887).] 
[Where  money  is  borrowed  from  a  bank  for  the  purpose  of  purchasing 
machinery,  and  the  borrower  offers  to  give  a  chattel  mortgage  thereon, 
but  the  offer  is  not  accepted  until  about  a  year  after  the  machinery  is 
annexed  to  mortgaged  land,  the  bank  can  not  claim  the  equities  of  a  seller 
on  condition,  nor  even  of  one  who  advances  money  relying  upon  a  chattel 
mortgage  of  fixtures.  Fisk  v.  People's  Bank,  14  Colo.  App.,  21,  30  (1899).] 
[Where  a  seller  reserves  title  to  machinery  until  paid,  which  is  attached 
to  mortgaged  premises,  it  does  not  become  a  fixture  as  between  him  and  the 
mortgagee  unless  the  amount  due  is  tendered,  but  does  as  between  the 
mortgagee  and  all  other  persons,  so  that  as  soon  as  the  machinery  is  paid 
for  the  mortgage  lien  is  superior.  Langdon  v.  Buchanan,  62  N.  H.,  657, 
660  (1883).] 

[The  rule  stated  in  the  text  applies  even  though  the  mortgagor  has 
attorned  as  tenant  to  the  mortgagee.  Ex  -parte  Punnett  (1880),  16  Ch.  D., 
226.] 

[Mere  standing  by  and  not  assenting  does  not  constitute  implied  assent, 
by  the  mortgagee,  that  he  will  not  claim  the  benefit  of  improvements  being 
made;  otherwise  every  mortgagee  would  be  deprived  of  the  benefit  of 
improvements  which  he  saw  being  made.  Watertown  Steam  Engine  Co.  v. 
Davis,  5  Houston,  192,  207  (Del.,  1877)  ;  Catterlin  v.  Armstrong,  101  Ind., 
258,  267  (1881).] 

[' '  There  is  no  material  difference  whether  the  chattel  is  attached  before 
or  after  the  execution  of  the  mortgage;  except  that  when  the  articles  are 
annexed  subsequently,  and  are  of  a  doubtful  nature,  it  seems  that  stronger 
evidence  of  intention  that  it  is  an  accession  to  the  freehold,  is  required, 
than  when  annexed  at  the  time  of  the  making  of  the  mortgage."  Tillman 
V.  DeLacy,  80  Ala.,  103,  105   (1885).] 

[A  mortgagor  can  not,  by  substituting  new  for  old  machinery,  compel 
the  mortgagee  to  take  tlie  mill  in  a  dismantled  condition.  Bass  Foundry 
Works  V.  Gallentine,  99  Ind.,  525,  529  (1884)  ;  see,  also,  Rayman  v.  Hen- 
derson Nat.  Bank,  98  Ky.,  748,  751  (1896).] 

[If  the  mortgagor  purchases  trade  fixtures  attached  to  the  premises  the 
same  consequences  result  as  if  they  wore  placed  there  for  the  first  time, 
and  they  inure  to  the  benefit  of  tlie  mortgagee.  London  Loan  Co.  v.  Pul- 
ford,  8  Ont.  Pr.,  150,  153  (1879).  But  see  Belvin  v.  Raleigh  Paper  Co., 
123  N.  C,  138,  145  (1898),  where  it  is  held  that  if  fixtures  are  conveyed 
by  a  lessee  to  his  Iohsop,  a  mortgagor,  who,  as  ii  part  of  the  same  transac- 
tion, gives  a  mortgage  thereon  to  secure  the  purchase  money  therefor,  the 
rights  of  the  second  mortgagee  are  superior  to  those  of  the  mortgagee  of 
the  land.] 

[The  rule  of  the  text  MfijilioH  osy)(>('i:illy  in  the  f.-ise  of  n  brick-yard,  where 
there  is  constant  diminution  of  viiluc  of  tlie  land  by  denuding  it  of  its  clay. 
Fisk  v.  Peoples  Bank,  14  Colo.  App.,  21,  27  (1899).] 

409 


*281  THE  LAW  (W  FIXTURES.  [ClI^VP.   IX. 

[Machinery  placed  iu  a  paper-mill,  which  could  not  be  removed  without 
great  depreciation,  is  a  part  of  the  freehold,  and  the  premises,  upon  a  sale 
under  a  deed  of  trust,  should  be  sold  entire.  Hill  v.  National  Bank,  97 
U.  S.,  450  (1S7S)  ;  Hill  v.  Shoemaker,  8  D.  C,  305,  310  (1874).] 

[A  lunise  built  by  one  of  the  mortgagors  subsequent  to  the  mortgage 
inures  to  the  benefit  of  the  mortgagee.  Matzon  v.  Griffin,  78  Til.,  477,  480 
(1875)  ;  but  the  rule  does  not  apply  where  one  co-tenant  mortgages  his 
share,  and  the  other  makes  the  improvements.  Annely  v.  DeSaussure,  17 
S.  C,  389,  394  (1881).  If  one  tenant  in  common  places  improvements 
upon  the  comnum  property,  his  lien  on  his  co-tenant 's  interest  for  a  pro- 
portionate share  of  the  increase  in  value  caused  by  the  improvements  will 
pass  under  his  mortgage  of  the  property.  Salem  Nat.  Bank  v.  White,  159 
111.,  136,  146  (1895).  Where  one  tenant  in  common  so  conducts  himself 
as  to  lead  the  mortgagee  to  think  that  his  co-tenant  is  the  sole  owner, 
and  consents  to  the  erection  of  buildings  upon  the  land  with  the  money 
raised  by  the  mortgage,  the  lien  of  the  incumbrance  attaches  to  his  in- 
terest. Baird  v.  Jackson,  98  111.,  78,  88  (1881).  A  tenant  in  common  of 
land  built  a  house  thereon  under  an  agreement  with  his  co-tenant  and  a 
second  mortgagee  of  the  land  that  the  builder  could  remove  the  house  if 
the  land  was  not  paid  for.  Having  insured  the  house  as  realty  and  unen- 
cumbered, held,  that  he  could  not  recover  from  the  insurance  company 
for  a  loss.  Phillips  v.  Grand  River  Ins.  Co.,  46  Up.  Can.  Q.  -B.,  334 
(1881).] 

[The  rule  of  the  text  does  not  apply  where  the  mortgage  expressly 
covers  gas-pipes  "already  laid."  Davidson  v.  Westchester  Gas-Light  Co., 
99  N.  Y.,  558,  569   (1885).] 

[However,  a  mortgagee  is  not  entitled  to  the  improvements  placed  upon 
land  by  a  railroad  company  by  consent  of  the  owner,  where  condemnation 
proceedings  are  postponed.  North  Hudson  R.  Co.  v.  Booraem,  28  N.  J. 
Eq.,  450  (1877),  overruling  Booraem  v.  Wood,  27  N.  J.  Eq.,  371;  Dows 
V.  Congdon,  16  How.  Pr.,  571  (N.  Y.,  1858)  ;  St.  Johnsbury  &  L.  C.  R.  R. 
Co.  V.  Willard,  61  Vt.,  134  (1888) ;  Aspinwall  v.  Chicago  &  N.  W.  R'y  Co., 
41  Wis.,  474  (1877);  Kennedy  v.  Milwaukee  &  St.  P.  R'y  Co.,  22  Wis., 
581  (1868).  But  it  is  otherwise  where  the  company  has  not  filed  any 
written  location.  Meriam  v.  Brown,  128  Mass.,  391  (1880);  or  where 
track  is  laid  upon  mortgaged  land  which  the  company  has  purchased,  but 
which  it  has  no  right  to  condemn.  Price  v.  Weehawken  Co.,  31  N.  J.  Eq., 
31  (1879)  ;  or  where  the  company,  being  a  party  to  the  foreclosure  suit, 
asserts  no  rights.  Philadelphia,  R.  &  N.  E.  R.  R.  Co.  v.  Bowman,  23  App. 
Div.,  170   (1897),  aff'd  163  N.  Y.,  572  (1900).] 

[Where  water-works  were  sold  on  execution  subject  to  a  mortgage,  and 
possession  given  to  the  purchasers,  who,  pending  litigation,  put  up  an 
electric  light  line,  additional  mains  and  machinery  to  meet  the  public 
necessities,  but  upon  the  idea  that  they  would  have  the  right  to  remove 
such  additions,  upon  foreclosure  of  the  mortgage,  the  execution  purchasers 
are  entitled,  out  of  the  surplus  left  after  the  payment  of  the  mortgage, 
to  compensation  to  the  extent  that  the  price  which  the  property  brought 

410 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *282 

be  removed  or  otherwise  disposed  of  during  the  life  of  the  mort- 
gage, either  by  the  mortgagor  himself  or  one  claiming  under 
*him  as  vendee,  assignee,  etc.,  to  whom,  without  the  eon-  [*282] 
sent  of  the  mortgagee,  the  mortgagor  can  confer  no  greater 
rights  than  he  possesses  himself.^    The  mortgagor  in  such  a  case 

was  enhanced  by  the  removable  betterments,  although  the  mortgage  ex- 
pressly covered  after  acquired  machinery.  Georgetown  Water  Co.  v. 
Fidelity  Tr.  Co.,  78  S.  W.,  113  (Ky.,  1904).] 

lAckroyd  v.  Mitchell,  3  L.  T.  (N.  S.),  236  (1860);  McCluney  v.  Lemon, 
Hayes,  154  (1831),  an  execution  creditor;  Frankland  v.  Moulton,  5  Wis.,  1 
(1856),  a  chattel  mortgage;  Burnside  v.  Twitchell,  43  N.  H.,  390  (1861); 
Smith  V.  Goodwin,  2  Me.,  173  (1822)  ;  Roberts  v.  Dauphin,  &c.,  Bank,  19 
Penn.  St.,  71  (1852);  Cole  v.  Stewart,  11  Cush.,  181  (1853);  Butler  v. 
Page,  7  Met.,  40  (1843);  Winslow  v.  Merchants  Ins.  Co.,  4  Met.,  306 
(1842);  Pettengill  v.  Evans,  5  N.  H.,  54  (1829),  doors,  locks,  etc.  See 
ante,  chap.  1,  p.  *47,  Severance,  as  to  the  effect  of  severance  in  cases  where 
the  mortgage  is  considered  a  mere  lien,  and  not  a  conveyance. 

[The  mortgagee's  claim  is  superior  to  that  of  a  grantee  of  the  land. 
Briggs  v.  Chicago,  &c.,  E.  Co.,  56  Kan.,  526,  531  (1896);  Payne  v.  Ander- 
son, 35  La.  Ann.,  977,  979  (1883);  or  to  that  of  a  subsequent  mortgagee 
of  the  fixtures.  Jackson  ads.  Turrell,  39  N.  J.  Law,  329,  331  (1877); 
Best  V.  Hardy,  123  N.  C,  226  (1898)  ;  see,  also,  Howell  v.  Barnard,  32 
111.  App.,  120  (1889);  or  to  that  of  an  assignee.  Farmers  &  Mechanics' 
Bank  of  Georgetown  v.  Cover,  1  Hay.  &  Haz.,  177,  178  (D.  C,  1844); 
State  Sav.  Bank  v.  Kercheval,  65  Mo.,  682,  688  (1877)  ;  Annely  v.  De- 
Saussure,  12  S.  C,  488  (1879).  See,  generally,  Thompson  v.  White  Water 
Val.  R.  R.  Co.,  132  U.  S.,  68  (1889)  ;  Wight  v.  Gray,  73  Me.,  297  (1882); 
Tarbell  v.  Page,  155  Mass.,  256  (1892) ;  Meagher  v.  Hayes,  152  Mass., 
228  (1890);  Bean  v.  Brackett,  34  N.  H.,  102,  118  (1856);  Wharton  v. 
Moore,  84  N.  C,  479  (1881);  Miles  v.  Ankatell,  25  Ont.  App.,  458,  461 
(1898).] 

If  fixtures  in  a  mill  erected  upon  real  estate  on  wliich  there  were  at  the 
time  of  such  erection  two  mortgages,  be  sold  on  execution  by  the  junior 
mortgagee,  and  purchased  and  removed  from  the  mill  by  liim,  and  he  sub- 
sequently rents  the  mill  to  a  third  party,  who  hires  the  fixtures  of  the 
plaintiff  with  the  understanding  that  he  is  to  place  them  back  in  the  mill 
for  use,  giving  his  bond  for  their  return,  the  fixtures  thorfby  become  sub- 
ject to  the  senior  mortgage,  and  pass  by  a  foreclosure  and  sale  thereunder 
to  the  purchaser;  the  right  of  the  junior  mortgagee,  who  was  made  a  party 
to  such  foreclosure,  is  thereby  extinguished,  and  the  party  hiring  the  fix- 
tures is  excused  from  returning  them,  and  is  not  liable  on  his  bond  for 
their  non-return.  Daniels  v.  Bowe,  25  Iowa,  403  (1868).  So  held,  with- 
out considering  what  rights  the  plaintiffs  acquired  by  their  purchase  of 
the  fixtures  under  the  execution  at  law.  [A  i)urchaser  at  a  mortgage  sale 
under  a  second  mortgage,  the  prior  mortgage  having  been  recorded,  can 

411 


•282  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

is  considered  as  looking  to  the  redemption  of  the  property,  and 
what  he  adds  to  it  of  a  permanent  character  is  for  his  own 
benefit.  However  expensive  the  erections,  he  may  always  save 
himself  from  loss  by  paying  the  debt  and  redeeming  the 
premises.- 

The  authorities  also  generally  lay  down  the  rule,  that  inas- 
much as  the  mortgagor  cannot  confer  a  greater  right  upon  an- 
other than  he  possesses  himself,  fixtures  annexed  by  a  tenant 
of  the  mortgagor  under  a  lease  executed  subsequent  to  the 
execution  of  the  mortgage,  pass  on  a  foreclosure  sale  to  the 
purchaser  at  such  sale,  and  cannot  be  removed  by  such  tenant.^ 

not  claim  for  improvements  made  by  him.  Asher  v.  Mitchell,  9  III.  App., 
335,  337  (1881).  "Where  a  first  mortgage  is  foreclosed  without  making  a 
second  mortgagee  a  party,  and  a  purchaser  at  the  foreclosure  sale  makes 
improvements,  they  are  covered  by  the  second  mortgage.  Catterlin  v. 
Armstrong,  101  Ind.,  258,  266   (1884);  79  Ind.,  514,  521   (1881).] 

[Where  a  grantee  of  land  has  constructive  notice  of  a  mortgage  there- 
on, the  mere  fact  that  the  mortgagee  knows  that  the  former  is  making 
improvements  will  not  estop  him  from  claiming  the  benefit  thereof.  Cat- 
terlin v.  Armstrong,  101  Ind.,  258,  267  (1884);  Mayo  v.  Cartwright,  30 
Ark.,   407,  412    (1875).] 

[If  the  mortgagor  has  sold  the  fixtures,  after  a  sale  of  the  land  pur- 
suant to  the  terms  of  the  trust  deed,  a  trust  attaches  to  the  funds  for  the 
benefit  of  the  grantee  of  the  land.  Davis  v.  Mugan,  56  Mo.  App.,  311, 
320   (1893).] 

[The  consent  of  the  mortgagee  to  the  removal  of  fixtures  may  be  im- 
plied; and  a  general  custom  would  show  an  intent  not  to  make  a  shingle- 
mill  a  part  of  the  realty.     Choate  v.  Kimball,  56  Ark.,  55,  62   (1892).] 

2  Corliss  v.  McLagin,  29  Me.,  115  (1848).  [Wight  v.  Gray,  73  Me.,  297, 
298  (1882);  Chase  v.  Wingate,  68  Me.,  204,  206  (1878)  ;  Haven  v.  Adams, 
90  Mass.,  363  (1864);  Foote  v.  Gooch,  96  N.  C,  265,  270  (1887);  Monti  v. 
Barnes  [1901],  1  K.  B.,  205,  208.] 

3  Gardner  v.  Finley,  19  Barb.,  317  (1855);  Frankland  v.  Moulton,  5 
Wis.,  1  (18.56);  Preston  v.  Briggs,  16  Vt.,  124  (1844),  where,  however,  the 
annexation  was  made  after  the  law  day  and  pending  suit  to  foreclose; 
Lynde  v.  Eowe,  12  Allen,  100  (1866).  [Thompson  v.  Vinton,  121  Mass., 
139,  143  (1876);  Union  Ins.  Co.  v.  Tillery,  152  Mo.,  421,  425  (1899); 
Burkhardt  v.  Hopple,  6  Ohio  Dec,  127  (1897)  ;  London  Loan  Co.  v.  Pul- 
ford,  8  Ont.  Pr.,  150,  153   (1879).] 

As  to  whether  this  doctrine  applies  to  trade  fixtures  a  quaere  is  sug- 
gested in  Cowden  v.  St.  John,  16  Iowa,  590  (1864)  ;  but  no  case  has  been 
found  supporting  this  distinction.  [Where  a  son,  paying  no  rent,  was  a 
tenant  at  will  of  his  father,  and  the  latter  mortgaged  the  land,  after 
which  the  son  placed  a  steam  engine  thereon,  held,  that  it  was  covered  by 

412 


CHAP.    IX.]  GRANTOR    AND    GRANTEE,    ETC.  *282 

the  mortgage.  Anderson  v.  McEwen,  9  Up.  Can.  C.  P.,  176,  179;  but  in 
Pratt  V.  Keith,  5  Montg.  Co.  (Pa.),  113  (1889),  opera  chairs  were  held 
to  be  trade  fixtures  and  not  passing  under  a  prior  mortgage  of  the  land 
as  against  an  execution  creditor  of  the  tenant.  In  Broaddus  v.  Smith, 
121  Ala ,  335,  339  (1898),  it  was  held  that  a  tenant  may  remove  fixtures 
subsequently  annexed  if  the  mortgagee's  security  is  not  impaired;  and 
in  Pioneer  Co.  v.  Fuller,  57  Minn.,  60,  63  (1894),  it  was  held  that  a 
tenant  who  has  placed  fixtures  in  a  house  after  a  mortgage  thereon,  has 
the  same  right  to  remove  them  against  a  purchaser  upon  foreclosure  as 
he  would  have  had  against  his  lessor.  This  is  true  even  though  the  right 
of  removal  arises  out  of  a  special  agreement  with  the  mortgagor.  Belvin 
v.  Ealeigh  Paper  Co.,  123  N.  C,  138,  144  (1898).  Trade  fixtures  placed 
upon  the  premises  by  a  tenant  of  the  mortgagor  subsequent  to  the  mort- 
gage, are  removable  as  against  the  mortgagee,  although  such  tenant  shortly 
afterwards  has  acquired  an  undivided  part  of  the  equity  of  redemption, 
Sanders  v.  Davis  (1885),  15  Q.  B.  D.,  218.  In  Jones  v.  Detroit  Chair  Co., 
38  Mich.,  92,  93  (1878),  it  is  said  that  the  lessee's  rights  to  machinery 
are  not  affected;  but  if  they  purchase  the  property,  they  unite  the  title 
to  the  realty  and  fixtures,  so  that  the  fixtures  become  subject  to  the 
mortgage.  A  mortgagee  of  trade  fixtures  has  a  reasonable  time  to  remove 
the  same  after  a  foreclosure  sale  of  the  land.  Bernheimer  v.  Adams,  70 
App.  Div.,  114,  119  (N.  Y.,  1902),  aff'd  175  N.  Y.,  472  (1903).  A  feed- 
wire  placed  upon  the  poles  by  a  lessee  of  an  electric  railway,  for  its  own 
accommodation,  is  not  covered  by  a  prior  mortgage  of  the  railway.  Kan- 
sas Trust  Co.  V.  Electric  Power  Co.,  116  Fed.,  904  (U.  S.  C.  C,  Mo., 
1902).] 

See,  also,  Ex  parte  Cotton,  2  Mont.  Dea.  &  DeG.,  725  (1842)  ;  Cullwick 
V.  Swindell,  L.  R.,  3  Eq.,  249  (1866),  where  fixtures  erected  by  a  firm  upon 
land  owned  by  one  of  the  partners  were  considered  as  bound  by  a  prior 
mortgage  upon  the  land;  also  Ex  parte  Scarth,  1  Mont.  Dea.  &  DeG.,  240 
(1840)  ;  Trappes  v.  Harter,  3  Tyrwh.,  603  (1833)  ;  s.  c,  2  Cr.  &  M.,  153;  3 
L.  J.  (N.  S.),  Exch.,  24  (cited  ante,  p.  *270,  in  this  chapter)  ;  Christian  v. 
Dripps,  ante,  p.  '273.  [See  Coleman  v.  Stearns  Mfg.  Co.,  38  Mich.,  30,  37 
(1878).  Articles  annexed  by  one  partner  to  the  land  of  the  other  which 
is  mortgaged,  must  be  considered  as  annexed  by  the  mortgagor;  and  an 
agreement  to  treat  them  as  personalty  can  not  bind  the  mortgagee.  Thomp- 
son V.  Vinton,  121  Mass.,  139,  142  (1876).  In  Penn  v.  Citizens'  Bank,  32 
La.  Ann.,  195,  200  (1880),  a  boiler,  capable  of  removal,  was  held  to 
belong  to  a  partnership  as  against  a  mortgagee  of  the  realty.  See,  also, 
Gooderham  v.  Dcnholm,  18  Up.  Can.  Q.  B.,  203,  211    (18.59).] 

[Fixtures  placed  upon  mortgaged  land  by  a  licensee  of  the  mortgagor 
are  covered  by  the  mortgage.  Ekstrom  v.  Hall,  90  Me.,  186,  190  (1897); 
Wight  V.  Gray,  73  Me.,  297,  299  (1882).  In  the  latter  case  a  frame 
building  resting  upon  posts  set  in  the  ground,  and  having  a  chimney, 
erected  by  the  hu'-bnnd  of  the  mortgagor  and  with  her  consent  was  held 
to  be  covered  liy  llif  mortgage.] 

[A  mortgage  of  a   railroad   does  not  cover  a  telegraph  line  afterwards 

413 


•283  THE  L.VW  OF  fixtures.  [CHA1\   IX. 

Of  late  years  there  has  appeared  a  tendency,  which  in  some 
States  has  become  an  established  rule,  that,  while  improve- 
[*283J  *ments  made  by  the  mortgagor  on  the  mortgaged  prem- 
ises will  be  presumed  to  have  been  made  for  the  benefit  of  the 
inheritance,  yet  this  presumption  will  not  be  taken  to  be  an 
absolute  one,  eitlier  against  the  mortgagor  or  the  owner  of 
chattels  placing  them  upon  the  mortgaged  premises  under  an 
agreement  that  they  shall  continue  to  remain  personalty;  and 
where  the  intention  of  the  party  making  the  annexation  is  that 
the  thing  annexed  shall  not  by  annexation  become  part  of  the 
freehold,  the  absence  of  a  concurrent  intent  on  the  part  of  a 
prior  mortgagee  of  the  real  estate  will  not,  it  is  held,  avail  to 
make  such  annexed   chattels  realty.     ^Although  it  may  with 

built  upon  the  right  of  way,  and  which  belongs  to  another  corporation. 
Western  Union  Tel.  Co.  v.  Burlington  &  Southwestern  E  'y  Co.,  3  McCrary, 
130  (U.  S.  C.  C,  Iowa,  1882).] 

iSee  Tifrt  v.  Horton,  53  N.  Y.,  380  (1873);  Crippen  v.  Morrison,  13 
Mich.,  35  (1864),  per  Campbell,  J.,  where  it  is  suggested  that  the  statutes 
forbidding  possessory  actions  against  the  mortgagor  have  changed  his 
position  as  to  this  question;  Eaves  v.  Estis,  10  Kan.,  314  (1872);  see, 
also,  Yater  v.  Mullen,  23  Ind.,  562  (1864);  s.  c,  24  id.,  277,  a  judgment 
lien.  [Mott  Iron  Works  v.  Middle  States  Co.,  17  App.,  D.  C,  584  (1901)  ; 
Vanderslice  v.  Knapp,  20  Kan.,  647,  649  (1878);  Walburn-Swenson  Co.  v. 
Darrell,  49  La.  Ann.,  1044,  1045  (1897);  New  York  Investment  Co.  v. 
Cosgrove,  47  App.  Div.,  35,  37  (1900),  aff'd  167  N.  Y.,  601  (1901); 
Sprague  Nat.  Bank  v.  Erie  E.  E.  Co.,  22  App.  Div.,  526,  529  (N.  Y., 
1897);  Nichols  v.  Potts,  71  N.  Y.  Supp.,  765,  766  (1901);  Brand  v. 
McMahon,  15  N.  Y.  Supp.,  39  (1891);  Farnsworth  v.  Western  Union  Co., 
6  N.  Y.  Supp.,  735,  743  (1889)  ;  see,  also,  Miller  v.  Waddingham,  91  Cal., 
377,  381  (1891);  Harris  v.  Hackley,  127  Mich.,  46,  50  (1901);  North- 
western Ins.  Co.  v.  George,  77  Minn.,  319  (1899);  Merchants'  Nat.  Bank 
V.  Stanton,  59  Minn.,  532  (1894)  ;  Mundine  v.  Pauls,  28  Tex.  Civ.  App., 
46  (1902);  First  Nat.  Bank  of  Braddock  v.  Hyer,  46  W.  Va.,  13,  16 
(1899).] 

[Where  a  husband,  in  fraud  of  his  creditors,  places  improvements  upon 
his  wife's  mortgaged  land,  the  claim  of  the  creditors  to  such  improve- 
ments is  superior  to  that  of  the  mortgagee.  Ware  v.  Hamilton  Brown 
Co.,  92  Ala.,  145,  151   (1890).] 

[Where  one  tenant  in  common  mortgages  his  undivided  share,  and  the 
other  makes  improvements,  the  general  rule  that  subsequent  improvements 
inure  to  the  mortgagee  gives  way  to  the  rule  which  governs  in  cases  of 
partition.     Annely  v.  DeSaussure,  17  S.  C,  389,  394   (1881).] 

[Where  the  mortgagor  conveys  a  right  of  way  to  a  railroad  company, 
over  which  it  lays  its  tracks,  such  track  does  not  pass  under  foreclosure  of 

414 


CHAP,   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *283 

the  mortgage.     Skinner  v.  Ft.  "Wayne,  T.  H.  &  S.  W.  K.  R.  Co.,  99  Fed,, 
465   (U.  S.  C.  C,  Ind.,  1900).] 

[Where  a  suit  to  foreclose  a  vendor's  lien  is  instituted,  and  certain  de- 
fendants claim,  in  their  answer,  a  house  upon  the  land  as  their  chattel, 
and  where,  if  no  defense  were  made,  the  plaintiff  Avould  have  included  the 
house  in  the  sale  of  the  realty,  a  demurrer  by  the  plaintiff  that  the  title 
to  personal  property  can  not  be  litigated  in  such  an  action,  is  properly 
overruled.     McDonald  v.  Shepard,  25  Kan.,  112,.  116    (1881).] 

[See  Sue.  of  Bienvenu,  106  La.,  595  (1902),  as  between  two  mort- 
gagees.] 

Where  H.  contracted  with  S.  to  put  boilers  in  his  mill  in  place  of  worn 
out  old  ones,  to  be  paid  $4  per  month  for  their  use,  and  to  have  the  right 
to  remove  them  whenever  he  pleased,  and  they  could  be  removed  without 
other  injury  than  taking  down  the  boiler-wall  built  of  brick  and  standing 
under  a  shed  outside  of  the  mill.  Held,  that  this  was  a  hiring  of  chattels, 
that  they  did  not  become  subject  to  a  prior  mortgage  on  the  land,  and 
hence  did  not  pass  by  a  sale  of  the  land  on  execution  issued  on  a  judgment 
thereon.  Hill  v.  Sewald,  53  Penn.  St.,  271  (1866).  See,  however,  Fryatt 
V.  Sullivan  Co.,  5  Hill,  116  (1843)  ;  s.  c,  7  Hill,  529. 

[A  cotton  press  placed,  for  temporary  exhibition  by  a  third  party,  in 
a  mill,  is  not  covered  by  the  mortgage  of  the  mill  and  "all  other  ma- 
chinery and  improvements  that  may  be  hereafter  placed  therein  or  attached 
thereto;"  nor  does  it  come  within  the  mortgage  if  one  of  the  mortgagors 
afterwards  purchases  it,  if  it  was  not  to  be  used  upon  the  premises,  but 
remained  solely  as  a  place  of  safe-keeping.  Stell  v.  Paschal,  41  Tex., 
640,  646   (1874).] 

In  Vermont  a  distinction  is  justly  made  between  machinery  placed  in  the 
mill  before  and  that  annexed  after  the  execution  of  the  mortgage  upon  the 
land,  and  it  is  held  that  as  to  machinery  which  was  in  the  yard  but  had 
not  been  placed  in  the  mill  at  the  time  of  the  execution  of  the  mortgage 
upon  the  land,  but  was  annexed  afterwards,  as  to  which  the  mortgagee  of 
the  land  was  not  misled,  and  advanced  nothing  on  the  faith  of  it,  the  right 
of  the  conditional  vendor  of  such  machinery  is  paramount  to  that  of  the 
mortgagee  of  the  land.  Davenport  v.  Shants,  43  Vt.,  546  (1871).  See, 
however,  Frankland  v.  Moulton,  5  Wis.,  1    (1856). 

[A  water-wheel  substituted  for  an  old  one  docs  not  pass  under  a  prior 
mortgage  of  a  sawmill  as  against  a  seller  on  condition.  Page  v.  Edwards, 
64  Vt.,  124,  131   (1891).] 

[Clearer  evidence,  as  between  mortgagor  and  mortgagee,  is  required  to 
make  articles  a  part  of  the  freehold  when  attached  after  the  execution  of 
the  mortgage,  than  if  attached  before,  upon  the  idea  that  the  agreement 
was  made  with  reference  to  the  existing  condition  of  the  property  as 
security.     Clore  v.  Lambert,  78  Ky.,  224,   227   (1879).] 

In  discussing  the  point  stated  in  the  text,  Folger,  J.,  in  Tifft  v.  Hor- 
ton,  said:  "It  may  in  this  case  bo  conceded  that  if  there  were  no  fact  in 
it  but  the  placing  upon  the  premises  of  the  engine  and  boilers  in  the 
manner  in  which  they  were  attached  thereto,  they  would  have  become  fix- 

415 


•283  THE  LAW  OF  FIXTURES.  [CHAP,   IX. 

tures,  ami  would  pass  as  a  part  of  the  realty.     But  the  agreement  of  the 
then  owner  of  the  laiui   and  the  plaintiff  is  express,  that  they  should  be 
and  remain  personal   property  until  the   notes  given   therefor  were  paid; 
and,  by   the  same  agreement,  power  was  given  to  the  phiintiifs,  to  enter 
upon  the   premises  in  certain  contingencies,  and   to   take  and  carry  them 
away.     While  there  is  no  doubt  but  that  the  intention  of  the  owner  of  the 
land,  was  that  the  engine  and  boilers  should  ultimately  become  a  part  of 
the  realty,  and  be  permanently  affixed  to  it,  this  was  subordinate  to  the 
prior  intention  expressed  by  the  agreement.     That  fully  shows  her  inten- 
tion ami  the  intention  of  the  plaintiffs,  that  the  act  of  annexing  them  to 
the   freehold   should  not   change  or  take  away   the  character   of   them   as 
chattels,  until  the  price  of  them  had  been  fully  paid.     And  as  the  parties 
may  by  their  agreement,  expressing  their  intention  so  to  do,  preserve  and 
continue  the  character  of  the  chattels  as  personal  property,  there  can  be 
no  doubt  but  that  as  between  themselves  the  agreement  in  this  case  was 
fully  sufficient  to  that  end.     But  it  is  contended,  that  where  in  the  solu- 
tion of  this  question  the  intention  is  a  criterion,  it  must  be  the  intention 
of  all  those  who  are  interested  in  the  lands;  and,  that  here  the  defndants, 
prior   mortgagees   of   the   real   estate,   were   interested,   and   have   not    ex- 
pressed nor  shown  such  intention.     It  is  not  to  be  denied,  that  as  a  general 
rule,  all  fixtures  put  upon  the  land  by  the  owners  thereof,  whether  before 
or  after  the  execution  of  a  mortgage  upon  it,  become  subject  to  the  lien 
thereof.     Yet,  I  do  not  think  that  the  prior  mortgagee  of  the  realty  can 
interpose  before  foreclosure  and  sale,  to  prevent  the  carrying  out  of  such 
an  agreement  as  that  in  this  ease.     Had  the  mortgagees  taken  their  mort- 
gape  upon  the  lands,  after  the  boilers  and  engine  had  been  placed  thereon 
under  this  agreement,  they  would  have  had  no  right  to  prevent  the  removal 
of  them  by  the  plaintiffs,  on  the  happening  of  the  contingencies  contem- 
plated by  it.     The  rights  of  a  subsequent  mortgagee  are  no  greater  than 
those  of  a  subsequent  grantee,  and  he,  it  is  held,  cannot  claim  the  chattels 
thus  annexed,  and  must  seek  his  remedy  for  their   removal  by  virtue   of 
such  agreement  upon  the  covenants  in  his  conveyance  of  the  lands.     (Mott 
V.  Palmer,  1  N.  Y.,  564;  and  see  Ford  v.  Cobb,  20  N.  Y.,  344.)     A  prior 
mortgagee,  who  certainly  has  not  been  induced  to  enter  into  his  relation  to 
the  lands  by  the  presence  thereon  of  the  chattels  in  dispute  subsequently 
annexed  thereto,  has  no  greater  right  than  a  subsequent  mortgagee.   Neither 
could   claim   as   subject   to   the   lien   of   his   mortgage,   personal   property 
brought   on  to   the  premises  with  permission   of   the  owner   of   the   lands, 
and  not  at  all  affixed  thereto.     Nor  can  either  claim  personal  property  as 
so  subject,  from  the  mere  fact  of  the  affixing,  where,  by  the  express  agree- 
ment of  the  owner  of  the  fee  and  the  owner  of  the  chattel,  its  character 
as  personal  property  was  not  to  be  changed,  but  was  to  continue,  and  it 
to  be  subject  to  a  right  of  removal  by  the  owner  of  the  chattel  on  failure 
of  performance   of  conditions.     The  language   of   the  authorities  is,   that 
the  chattel  in  such  case  is  personal  property,  for  which  an  action  of  trover 
for  the  conversion  of  it  may  be  maintained.      (Smith  v.  Benson,   1   Hill, 
176;   Mott  V.  Palmer,  stipra;  Farrar  v.  Chauffetete,  5  Den.,  527;  Ford  v. 
Cobb,  supra.)"     [See  Warren  v.  Liddell,  UQ  Ala.,  232    (1895);   EUison 

416 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *283 

V.  Salem  Mining  Co.,  43  111.  App.,  120,  127  (1889)  ;  Pope  v.  Jackson,  65 
Me.,  162,  165  (1876);  Defiance  Mach.  Works  v.  Trisler,  21  Mo.  App.,  69 
(1886)  ;  Cochran  v.  Flint,  57  X.  H.,  514,  546  (1877)  ;  General  Electric  Co. 
V.  Transit  Co.,  57  N.  J.  Eq.,  460,  471  (1898);  Duntz  v.  Granger  Brew. 
Co.,  83  N.  Y.  Supp.,  957,  959  (1903)  ;  Farnsworth  v.  Western  U.  T.  Co.,  3 
Silvernail,  30  (Supr.  Ct.,  N.  Y.,  18S9) ;  Hine  v.  Morris,  3  Wkly.  Cin. 
Law.  Bui.,  515  (Dist.,  1878);  Padgett  v.  Cleveland,  33  S.  C,  339,  346 
(1889) ;  Thomas  v.  Inglis,  7  Ont.,  588  (1885) ;  Watrous  Engine  Co.  v. 
Henry,  2  Man.,  169  (1884);  see,  also,  Banque  d'Hochelaga  v.  Watrous 
Engine  Co.,  27  Can.,  406  (1897),  aflf 'g  Watrous  Engine  Co.  v.  Hochelaga 
Bank,  5  Que.,  Q.  B.,  125  (1896)  ;  Chevalier  v.  Beauchemin,  17  Eev.  Leg., 
642  (Que.,  C.  S.,  1889)  ;  Condit  v.  Goodwin,  89  N.  Y.  Supp.,  827.] 

[See  Western  Union  Tel.  Co.  v.  Burlington  &  S.  W.  Co.,  11  Fed.,  1 
(U.  S.  C.  C,  Iowa,  1882),  as  to  a  telegraph  line  upon  foreclosure  sale  of  a 
railroad  right  of  way.] 

[A  steam-train,  consisting  of  copper-piping  and  copper  pans,  placed  in 
a  sugar  house  by  the  mortgagor,  and  necessary  to  its  operation  (it  not 
appearing  that  it  was  not  of  the  character  of  fixtures  which  a  lessee  would 
have  the  right  to  remove,  or  that  its  removal  would  impair  the  security) 
is  not  covered  by  the  mortgage  as  against  one  claiming  a  lien  for  unpaid 
purchase  money.  To  hold  otherwise  would  be  inequitable,  and  in  restraint 
of  trade.     Phelps  v.  Edwards,  52  Tex.,  371   (1880).] 

[The  rule  that  all  fixtures  annexed,  subsequent  to  the  execution  of  the 
mortgage,  by  the  tenant  or  licensee,  became,  as  to  the  mortgagee,  a  part 
of  the  realty,  was  founded  upon  the  old  common  law  doctrine  that  the 
mortgage  was  a  conveyance,  and  the  mortgagor  a  tenant  at  will;  but  in 
states  where  a  mortgage  is  mere  security,  there  is  a  tendency  to  repudiate 
the  old  rule,  and  to  hold  that  where  the  intention  of  the  mortgagor  and 
of  the  party  making  the  annexation  was  that  the  thing  annexed  should 
not  become  a  part  of  the  realty,  the  absence  of  agreement  to  that  effect 
on  the  part  of  the  prior  mortgagee  will  not,  of  itself,  make  the  annexa- 
tion a  part  of  the  security.  The  annexation  not  having  been  made  when 
he  took  his  mortgage,  he  has  not  been  misled  nor  advanced  anything  on 
the  faith  of  it.     Merchants'  Bank  v.  Stanton,  55  Minn.,  211,  220   (1893).] 

[Where  a  mortgagor  has  no  right  nor  power  to  make  an  article  a  part 
of  the  realty,  he  can  not  do  so  as  against  the  owner  of  the  article.  Gen- 
eral Electric  Co.  v.  Transit  Co.,  57   N.  J.  Eq.,  460,  472   (1898).] 

[Telegraph  wires  strung  under  an  agreement  with  a  third  party  for 
their  removal,  and  which  can  be  removed  without  material  injury  to  the 
structure,  do  not  lose  their  character  as  personalty,  and  arc  removable. 
Boston  Trust  Co.  v.  Bankers'  Tel.  Co.,  36  Fed.,  288,  297  (U.  S.  C.  C, 
N.  Y.,  1888).] 

[Where  the  agreement,  reserving  title  in  the  seller,  was  made  in  New 
Hampshire,  the  law  in  that  state  will  govern.  Hence,  a  water-wheel  is 
not  covered  by  a  prior  mortgage.  The  burden  is  upon  the  one  claiming 
that  it  is  covered  Ity  the  rnortgago,  to  show  that  the  mortgage  was  subse- 
quent to  tho  annexation.  Buzzcli  v.  Cummings,  61  Vt.,  213  (1888).] 
27  417 


*283  '  THE  LAW  01"^  FIXTURES.  [CHAP.   IX. 

[lu  Wight  V.  Gr<ay,  73  Me.,  297,  298  (1882),  it  is  said  that  the  distinc- 
tion niatlo  in  Tifl't  v.  TTorton  is  of  no  importance  when  the  mortgagee  is  in 
possession  alter  foreclosure.] 

But  where  the  articles  in  question  (a  steam-engine  and  boiler  bolted  to 
permanent  and  substantial  foundations,  shafting  and  gearing  fitted, 
adapted  and  firmly  fastened  to  the  building  whore  used  and  of  no  use 
elsewhere  except  as  old  material)  are  actually  and  firmly  annexed  to  the 
freehold  in  as  permanent  and  substantial  a  manner  as  is  usual,  and  as  is 
adapted  to  the  nature  and  objects  of  their  employment,  though  capable  of 
being  removed  without  injury  to  the  building,  there  being  no  special  intent 
on  the  part  of  the  owner  of  the  fee  as  to  making  them  a  part  of  the  free- 
hold, and  no  intention  as  to  removing  them  at  any  future  time,  such  facts 
furnish  sufficient  e%idence  of  an  intention  to  make  such  articles  a  perma- 
nent accession  to  the  freehold ;  and  the  execution  of  a  chattel  mortgage 
upon  the  articles  in  question  before  being  placed  in  the  mill  is  not  suf- 
ficient to  overthrow  this  presumption  and  raise  the  contrary  one  of  an 
intention  to  preserve  their  character  as  personalty.  Voorhees  v.  McGinnis, 
48  N.  Y.,  278  (1872).  See,  also,  Frankland  v.  Moulton,  5  Wis.,  1  (1856); 
Pierce  v.  George,  108  Mass.,  78  (1871).  [Cooper  v.  Harvey,  16  N.  Y. 
Supp.,  660,  663  (1891)  ;  Henry  v.  Von  Brandenstein,  12  Daly,  480  (N.  Y. 
C.  P.,  1884).] 

See,  however,  dictum  in  Perkins  v.  Swank,  43  Miss.,  363  (1870)  ;  Tib- 
betts  v.  Moore,  23  Cal.,  208  (1863). 

But  a  planing-machine,  fire-pump,  saw-benches  and  saws,  worked  by 
hand,  being  complete  in  themselves  as  machines,  as  were  also  the  copper 
pipes  for  steaming  hubs,  all  being  of  equal  use  and  value  wherever  wanted, 
affixed  to  the  building  only  for  convenience  in  using,  and  capable  of  re- 
moval without  injury  to  the  building  or  to  themselves,  were  held  to  be 
chattels  and  to  pass  under  the  chattel  mortgages.  Voorhees  v.  McGinnis 
(supra).  As  to  the  articles  last  named  the  principle  applied  seems  to  have 
been  that  the  manner  of  the  attachment  being  such  as  to  leave  the  mind 
in  doubt  as  to  whether  they  became  a  part  of  the  freehold  or  not,  the 
intention  of  the  parties,  as  evinced  by  the  chattel  mortgage  was  allowed 
a  controlling  force.  See,  also.  Eaves  v.  Estis  (supra).  [Pomeroy  v. 
Schwender,  2  Kan.  App.,  305,  306  (1896)  ;  see,  also,  Kinsey  v.  Bailey,  16 
Supr.  Ct.   (9  Hun),  452   (N.  Y.,  1876).] 

[That  a  party  had  no  intention  to  remove  machines  until  there  was 
danger  of  losing  the  land  does  not  affect  his  rights  if  the  annexation  was 
not  permanent.     Kendall  v.  Hathaway,  67  Vt.,  122,  127   (1894).] 

[Where  a  chattel  mortgage  is  taken  by  the  sellers  of  machinery  to  be 
placed  in  a  flouring-mill,  and  which  is  connected  with  the  main  frame  in 
the  building  in  but  one  place,  where  a  box  is  bolted  to  one  of  the  timbers 
for  the  shafting  to  run  in,  and  which  can  be  removed  without  material 
injury  to  the  building,  the  chattel  mortgage  will  take  precedence  over  a 
prior  mortgage  of  the  land.  First  Nat.  Bank  v.  Elmore,  52  Iowa,  541, 
552   (1879).] 

[In  Ferris  v.  Quimby,  41  Mich.,  202,  206   (1879),  it  was  held  that  the 

418 


CHAP,   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *283 

mortgagors  never  intended  to  make  machinery  a  part  of  tlie  realty,  and 
no  one  could  be  wronged  by  keeping  it  separate.  The  mortgagee  was 
not  deceived,  as  the  machinery  was  not  in  the  building  at  the  time  the 
mortgage  -was  executed.  As  the  amount  of  the  mortgage  proved  to  be  all 
the  land  was  worth,  it  was  not  unlikely  that  the  owners  of  the  equity  of 
redemption  would  have  declined  to  place  valuable  machinery  in  the  build- 
ing had  they  supposed  the  mortgage  would  cover  it.] 

[A  hay-scale  easily  removed  from  a  pit  dug  and  walled  for  it,  is  not 
covered  by  a  prior  mortgage  of  the  land  as  against  an  unpaid  seller. 
Garven  v.  Hogue,  14  Wkly.  Cin.  Law  Bui.,  175   (C.  C,  1885).] 

[A  vendor's  lien  embraces  permanent  improvements  subsequently  made; 
and  may  be  extended  to  embrace  chattels  affixed  with  the  intention  to  make 
them  permanent,  but  not  as  against  a  creditor  of  the  purchaser  without 
notice  where  they  can  be  removed  without  diminishing  the  security.  The 
burden  is  upon  the  lien-holder  to  show  that  machinery  subsequently  an- 
nexed is  covered  by  his  lien.  Clore  v.  Lambert,  78  Ky.,  224,  231  (1879). 
A  vendor's  lien  does  not  cover  a  gin-stand,  a  grist-mill  stand  and  an  iron- 
screw  cotton  press,  that  can  be  detached  without  injury  to  the  freehold. 
MeJunkin  v.  Dupree,  44  Tex.,  500  (1876).  [See  Miller  v.  Wilson,  71  Iowa, 
610   (1887).] 

[Where  a  lien  was  reserved  upon  the  conveyance  of  a  swing  ferry-boat 
buoys,  chain,  machinery,  the  franchise,  and  an  easement  in  the  banks  of 
an  island  to  fasten  the  chain  which  was  connected  with  the  boat,  such  lien 
does  not  attach  to  a  new  boat,  buoys  and  part  of  a  chain  replacing  the 
former  when  worn  out,  as  they  are  not  fixtures.  Cowart  v.  Cowart,  71 
Tenn.,  57   (1879).] 

In  Tibbetts  v.  Moore,  above  cited,  a  conclusion  was  reached  with  refer- 
ence to  the  engine  and  boiler  in  question  contrary  to  that  above  stated  in 
Voorhees  v.  McGinnis,  and  the  lien  of  the  chattel  mortgage  executed  before 
the  annexation  was  made  was  considered  prior  to  that  of  the  mortgage 
upon  the  real  estate,  the  lien  of  which  though  prior  in  date  to  the  chattel 
mortgage  upon  the  engine,  etc.,  was  considered  to  attach  upon  the  engine, 
etc.,  only  from  the  time  they  became  attached  to  the  realty. 

[Mortgaged  machinery  was  placed  in  a  flouring  mill  upon  which  there 
was  a  mortgage.  Held,  that  if  the  machinery  could  be  removed  without 
injuring  the  real  estate,  the  chattel  mortgage  was  effectual  thereon.  If 
the  detachment  would  occasion  some  diminution  in  the  value  of  the  realty, 
the  depreciation  must  be  made  whole.  This  rule  is  in  the  interest  of  trade. 
"That  the  realty  mortgagee's  security  is  kept  whole  is  all  that  he  can 
ask,  as  agiiiiist  the  property  of  third  parties.  When  the  mortgaged  per- 
sonal property  is  attached,  tlic  mortgagor  has  only  an  cquiiy  of  rodem])- 
tion  therein,  to  which  the  mortgage  on  the  realty  at  once  attaches."  The 
mill  and  machinery  should  bo  offered  for  sale  separately  and  together,  and 
sold  in  the  way  in  which  they  would  bring  the  larger  sum.  If  together 
they  bring  a  larger  sum  than  when  offered  separately,  the  difference  be- 
tween the  two  sums  will  show  the  amount  to  wliich  the  realty  would  bo 
damaged,  while  the  persona!  mortgagee  would  be  only  entitled  to  what  the 

419 


•284  TJIE  LAW  OF  FIXTURES.  [CHAP.   IX. 

[*284]  *sonie  force  be  urjiccl  in  support  of  the  reasonableness  of 
this  doctrine  that,  the  property  not  being  annexed  to  the  land  at 
the  time  of  the  execution  of  the  mortgage,  the  mortgagee  of  the 
land  was  not  misled  and  has  advanced  nothing  on  the  faith  of 
[*285]  *it,  and  hence  ought  not  to  avail  himself  of  it  as  a  part 
of  his  security,  it  not  having  been  intended  as  such  by  the  party 
making  the  annexation,  still  the  rule  itself  has  so  far  not  been 
[*286]  *generally  adopted.^  If  the  mortgagee  has  consented  to 
the  arrangement  by  which  the  article  is  to  be  considered  per- 
sonalty, though  annexed  to  the  land,  the  case  is  different,  and 
the  right  of  removal  is  not  lost.^     And  in  cases  between  third 

personal  property  would  bring  if  sold  separately.  Hurxthal  v.  Hurxthal,  45 
W.  Va.,  584  (1898).     To  similar  effect,  see  Miller  v.  Griffin,  102  Ala.,  610, 

615  (1893);  Anderson  v.  Creamery  Mfg.  Co.,  67  Pac,  493  (Ida.,  1902); 
Binkley  v.  Forkner,  117  lud.,  176  (1888)  ;  Carpenter  v.  Allen,  150  Mass., 
281,  282  (1889)  ;  Campbell  v,  Koddy,  44  N.  J.  Eq.,  244  (1888)  ;  Waller 
V.  BowUng,   108  N.  C,  289,   296    (1891)  ;   Henkle  v.  Dillon,   15   Ore.,  610, 

616  (1888).  Where  opera-chairs  are  sold  under  an  agreement  that  a 
chattel  mortgage  shall  be  given  to  secure  part  of  the  purchase  price,  which 
is  done,  and  the  buyer  agrees  to  insure  them  for  the  seller,  an  intention  is 
shown  by  the  buyer  that  they  shall  remain  personal  property;  nor  are  the 
rights  of  the  seller,  as  against  a  mortgagee  of  the  building  affected  by 
taking  a  new  chattel  mortgage  at  the  expiration  of  the  first.  Andrews  v. 
Chandler,  27  111.  App.,  103,  110   (1887).] 

1  See  Hunt  v.  Bay  State  Iron  Co.,  97  Mass.,  279  (1867)  ;  Eichardson  v, 
Copeland,  6  Gray,  536  (1856);  Clary  v.  Owen,  15  Gray,  522  (1860); 
Pierce  v.  Emery,  32  N.  H.,  484  (1856).  [Paine  v.  McDowell,  71  Vt.,  28, 
33   (1898)  ;  see,  also,  Gough  v.  Wood  [1894],  1  Q.  B.,  713,  720.] 

In  Richardson  v.  Copeland,  the  property  (a  steam-engine  and  boiler) 
having  been  permanently  erected  on  the  premises  of  the  owner  in  fee,  was 
considered  de  facto  a  part  of  the  realty,  and  the  agreement  with  the  build- 
ers to  give  a  mortgage  thereon  as  personalty,  as  against  all  taking  title  to 
the  estate  in  fee,  was  considered  inoperative  and  void,  notwithstanding 
there  was  a  general  usage  and  custom  between  manufacturers  and  vendees 
of  such  property  to  treat  it  in  all  respects  as  personal  property. 

2  See  the  cases  cited  in  note  next  supra;  also  Bartholomew  v.  Hamilton, 
105  Mass.,  239  (1870).  [See  Wallace  v.  Dodd,  136  Cal.,  210  (1902); 
Watertown  Steam  Engine  Co.  v.  Davis,  5  Houston,  192,  212  (Del.,  1877)  ; 
Brooks  V.  Prescott,  114  Mass.,  392   (1874).] 

So,  if  he  treats  it  as  personal  property  and  consents  to  its  removal.  Bar- 
tholomew V,  Hamilton  (supra).  See,  also,  Yater  v.  Mullen,  23  Ind.,  562 
(1864);  s.  c,  24  Ind.,  277;  Sheldon  v.  Edwards,  35  N.  Y.,  279   (1866). 

[Where  machinery  covered  by  a  recorded  chattel  mortgage  is  placed  by 
the  mortgagor  upon  land  covered  by  a  mortgage,  the  mortgagee  of  the 

420 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC. 


^286 


parties,  or  to  which  the  mortgagee  is  not  a  party  and  in  which 
his  rights  would  not  be  affected,  agreements  to  consider  an 
annexation  to  the  mortgaged  premises  as  the  personal  property 
of  the  party  annexing  it,  will  be  enforced.^ 

land  is  not  entitled  to  sucli  machinery  as  against  the  chattel  mortgagee; 
and  especially  is  this  so  if  the  mortgagee  of  the  land  had  actual  notice 
of  the  facts  at  the  time  the  mortgage  is  given  and  admitted  the  priority 
of  the  Uen  of  the  chattel  mortgage.  In  such  case  the  mortgagee  of  the 
land  is  a  party  to  the  wrongful  conversion  of  the  personal  property  into  • 
realty,  and  can  not  have  the  benefit  of  his  own  wrong.  Rowland  v.  West, 
69  Supr.  Ct.   (62  Hun),  583   (N.  Y.,  1892).] 

[Where  the  mortgagee  of  land  consents  to  the  seller  of  machinery  reserv- 
ing title  thereto,  the  seller  is  authorized  to  assume  that  the  consent  covers 
gearing  and  attachments,  and  additional  machines  where  it  is  for  the 
obvious  interest  of  such  mortgagee;  and  this  is  confirmed  by  the  subsequent 
discussions  between  the  parties  wherein  no  distinction  is  made  between 
the  machines  first  set  up  and  those  furnished  later.  Hawkins  v.  Hersey, 
86  Me.,  39-i  (1894).  See  Paine  v.  McDowell,  71  Vt.,  28  (1898),  that 
consent'  of  the  mortgagee  to  the  removal  of  articles,  annexed  by  a  tenant, 
will  be  implied  from  allowing  the  mortgagor  to  remain  in  possession,  and 
deal  with  the  property  without  objection.] 

[Where  a  real  estate  mortgage  contains  a  clause  which  says  that  it  is 
given  subject  to  a  chattel  mortgage  on  machinery,  the  mortgagee  will  be 
estopped  although  the  chattel  mortgage  is  given  and  the  machinery  an- 
nexed subsequently.  Ellison  v.  Salem  Mining  Co.,  43  111.  App.,  120,  127 
(1889).  See  Scarth  v.  Ontario  Power  Co.,  24  Ont.,  446  (1894),  where  the 
mortgage  expressly  excepts  machinery  and  trade  fixtures  of  tenants.] 

[Where  a  statute  provides  that  a  school  district  can  not  build  a  frame 
scliool-house  "on  any  site  for  which  they  have  not  a  title  in  fee,  without 
the  privilege  to  remove  the  same,"  the  lien  of  a  mortgage  upon  the  land 
can  not  attach  to  a  school-house  thereon;  and  a  decree  in  foreclosure  that 
the  interest  of  the  school  district  in  the  real  estate  is  inferior  to  the  lien 
of  the  mortgage,  is  not  an  adjudication  that  such  school-house  is  real 
estate.     Burns  v.  School  District,  61  Neb.,  351,  353   (1901).] 

[Where  the  mortgage  is  of  a  leasehold,  and  the  mortgagor  is  a  nursery- 
man, consent  of  the  mortgagee  to  remove  fixtures  nocossary,  usual  and 
proper  to  carry  on  the  business  will  be  implied;  otherwise  persons  dealing 
with  the  mortgagor  will  bo  exposed  to  very  unreasonable  risks,  and  busi- 
ness would  be  seriously  impeded.    Gough  v.  Wood  [1894],  1  Q.  P.,  713.] 

3  Jewett  v.  Patridge,  12  Me.,  243  (1835).  In  this  case.  A.,  by  consent  of 
B.,  the  mortgagor  in  possession,  built  a  house  on  the  mortgaged  premises, 
which  was  subsequently  taken  and  sold  on  execution  as  the  property  of  A. 
Held,  in  an  action  of  trover  by  tli.>  purchaser  at  the  execution  sale  against 
C,  in  possession  under  a  purchase  from  B.,  who  had  taken  a  fraudul.Mit  bill 
of  sale  from  A.,  C.  having  notice  of  the  fraud,  that  C.  could  not  resist  the 

421 


*287  THE  LAW  OF  FIXTURES.  [CHAP,   IX. 

[*287]  *"\Yitli  rot'oronco  to  the  case  of  a  mortgagee  in  posses- 
sion, the  rule  is  that  where  he  undertakes  without  the  consent 
and  approbation  of  the  mortgagor  to  make  improvements  on  the 
property,  though  they  may  be  of  a  beneficial  and  permanent 
character,  he  does  it  at  his  peril,  and  has  no  right  to  look  for 
an  allowance  at  the  hands  of  the  mortgagor.^  It  has,  however, 
been  held  that  a  mortgagee  after  a  recovery  on  a  bill  to  redeem 
from  the  mortgage,  but  before  a  writ  of  possession  was  issued 
thereon,  might  lawfully  take  down  and  remove  any  buildings 
erected  by  him  with  his  own  materials,  which  were  not  properly 
fixtures,  or  so  connected  with  the  soil  as  that  they  could  not  be 
removed  without  prejudice  to  it,  the  same  rule  being  applied, 
apparently,  as  in  the  relation  of  landlord  and  tenant.^ 

plaintiff's  claim  by  showing  that  the  mortgagee  had  always  claimed  the 
house  and  forbade  its  removal.  As  between  A.  and  B.,  the. house  was  the 
personal  property  of  A.,  and  the  mortgagee  not  being  a  party  to  the  suit, 
his  rights  would  not  be  in  any  way  affected  by  this  action.  [Schumacher 
V.  Edward  P.  Allis  Co.,  70  111.  App.,  556  (1896);  see,  also,  Gordon  v. 
Miller,  28  Ind.  App.,  612,  615   (1901).] 

Where  a  tenant  for  years  of  a  town  lot,  under  a  provision  in  the  lease 
that  he  may  remove  all  buildings  at  the  end  of  his  term,  erects  a  building 
thereon  resting  on  posts  set  in  the  ground,  upon  which  he  makes  a  chattel 
mortgage  describing  it  as  "goods  and  chattels,"  all  persons  claiming 
under  him  will  be  estopped  from  denying  that  such  building  is  personal 
property  as  against  persons  claiming  under  such  mortgage.  Ballou  v. 
Jones,  37  111.,  95  (1865).     [See,  ijost,  p.  *346.] 

4  Clark  V.  Smith,  1  N.  J.  Eq.,  121,  138  (1830);  Dougherty  v.  McCalgan, 
6  Gill.  &  J.,  275  (1834).  [McQueen  v.  Whetstone,  127  Ala.,  417,  432 
(1900)  ;  McCumber  v,  Gilman,  15  III.,  381  (1854)  ;  Coleman  v.  Wither- 
spoon,  76  Ind.,  285,  290  (1881);  Horn  v.  Ind.  Nat.  Bank,  125  Ind.,  381, 
385  (1890)  ;  Cook  v.  Ottawa  Univ.,  14  Kan.,  548,  552  (1875)  ;  Bradley  v, 
Merrill,  91  Me.,  340,  345  (1898);  Madison  Ave.  Church  v.  Baptist  Church, 
41  N.  Y.  Super.,  369,  417  (1876);  Sanders  v.  Wilson,  34  Vt.,  318,  321 
(1861);  Witt  V.  Trustees  of  Druids,  55  Wis.,  376,  380  (1882);  see,  also, 
Bateman  v.  Raymond,  15  Mont.,  439,  444  (1895)  ;  Dewey  v.  Brownell,  54 
Vt.,  441    (1882).] 

5  Taylor  v.  Townsend,  8  Mass.,  411  (1812).  The  erections  in  question  in 
this  case  were  a  barn  resting  on  posts,  and  a  shed  used  as  a  blacksmith 
shop,  there  being  no  cellar  under  either  of  them.  Parker,  J.,  in  delivering 
the  opinion  of  the  court,  said:  "However  rigidly  the  rights  of  landlords 
against  their  tenants  may  have  been  construed  in  ancient  times,  it  is  now 
settled,  that  in  favor  of  trade,  manufactures  and  business,  buildings 
erected  for  those  objects  may  be  carried  away  by  those  whose  estate  is 
determined  [Bull.  N.  P.,  34] ;  and  Lord  Mansfield,  in  the  case  of  Lawton 

422 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC. 


^288 


With  reference  to  liens  upon  land,  created  by  statute,  as 
*in  the  case  of  deeds  of  conveyance,  their  effect  upon  the  [*288] 
right  to  fixtures,  is  often  a  matter  of  construction  depending 
upon  the  intention  of  the  legislature.  Under  statutes  making  a 
judgment  against  the  owner  of  the  inheritance  a  lien  upon 
land,  the  term  "land"  has  a  very  extensive  and  comprehensive 
signification,  and  the  lien  as  against  the  owner  of  the  land,  it 
seems,  extends  to  all  those  things  which  would  pass  by  a  sale 
thereof  on  execution.^ 

V.  Salmon  [1  H.  Bl.,  259,  in  notes],  adopts  the  common-sense  doctrine,  that 
improvements  made  by  the  tenant  during  his  term  may  be  removed  by  him, 
if  he  does  not  thereby  prejudice  the  estate  of  his  landlord.     It  is  enough 
for  the  tenant  to  say,  'I  leave  you  the  land  as  I  found  it.'     If  this  doc- 
trine is  advanced  in  the  case  of  a  tenant,  -u'ho  either  knows  the  duration 
of  his  own  term,  or,  if  a  tenant  at  will,  who  can  abandon  the  soil  when 
he  chooses,  and  therefore  may  be  said  to  incur  expense  by  erecting  build- 
ings, etc.,  in  his  own  wrong,  a  fortiori,  it  ought  to  apply  to  one  who  has 
held  the  estate  for  many  years  under  a  conveyance  from  the  owner,  with- 
out any  expectation  that  his  estate  would  be  defeated  by  the  performance 
of  a  condition  attached  to  it ;  which  was  the  case  of  the  present  defendant. 
On  the  first  count,  therefore,  we  decide  that  the  defendant  is  not  liable." 
D.  purchased  a  lot  of  land  at  a  sheriff's  sale  on  execution,  entered  into 
possession    and    erected    buildings    thereon.      Afterwards    he    removed    the 
buildings,  and  on  the  same  day  that  the  buildings  were  removed,  the  de- 
fendants in  execution  sold  the  premises  to  T.,  who   a  day  or  two   after- 
wards redeemed  the  lot  from  the  sale  and  then  brought  suit  against  D.,  to 
recover  the  value  of  the  buildings;  and  it  not  appearing  that  the  buildings 
were  ever  annexed  to  the  soil,  and  they  appearing  to  have  been  mere  tem- 
porary structures  and  removed  before   D. 's  possession   terminated.     Held, 
that  the  plaintiff  could  not  recover.     Tyler  v.  Decker,  10  Cal.,  435   (1858). 
[See  Kinney  v.  Knoobel,  51  111.,  112,  126  (1868)  ;  Marshall  v.  Stewart,  80 
Ind.,  189,  195   (1881).] 

[If  a  mortgagor  does  not  encourage  the  purchasers  of  a  lot  under  a 
decree  of  sale  foreclosing  a  mechanics'  lien,  to  place  improvements  there- 
on, or  hold  out  iii<Iuccments  that  he  would  abandon  all  claim  if  improve- 
ments were  made,  and  such  purchasers  know  that  the  mortgagee  has  a 
right  to  take  out  a  writ  of  error,  the  mortgagee  is  not  estopped  from 
claiming  the  benefit  of  improvements,  upon  having  the  decree  of  sale 
reversed.     Powell  v.  Eogers,  11  111.  App.,  98,  102   (1882).] 

[See,  upon  the  point  stated  in  the  text,  Poole  v.  Johnson,  62  Iowa,  611, 
613   (1883);  Cooke  v.  Cooper,  18  Ore.,  142,  149   (1889).] 

iRee  Coombs  v.  Jordan,  3  Bland  Ch.,  311  (1831).  Sec,  also,  Ilcaton  v. 
Findlay,  12  Penn.  St.,  304  (1849);  Goff  v.  O'Conner,  16  111.,  421  (1855); 
Latham  v.  Blakely,  70  N.  C,  368  (1874);  ante,  p.  »276,  in  this  chapter; 
also  ante,  p.  •47,  Severance.     [M.-Kinloy  v.  Smith,  29  Til.  App.,  106  (1888)  ; 

423 


•288  THE  LAW  OP  FIXTURES.  [CIIAP.   IX. 

But  things  M'hich,  though  attached  to  the  realty,  may  be  re- 
moved by  a  tenant  {c.  g.  trade  and  ornamental  fixtures  and  the 
like),  are  regarded  as  personal  chattels  in  favor  of  the  creditors 
of  the  tenant,  and  therefore  are  not  affected  to  the  prejudice  of 

Childs  V.  Hurd,  32  W.  Va.,  66,  115  (1889) ;  see,  also,  Rounsaville  v.  Hazen, 
39  Kan.,  610   (1888);  Kendall  Mfg.  Co.  v.  Rundle,  78  Wis.,  150   (1890).] 

[It  makes  no  difference  that  the  improvements  have  been  made  after 
the  lien  attached  to  the  land.  Taylor  v.  Morgan,  86  Ind.,  295,  298  (1882)  ; 
Bitter  v.  Cost,  99  Ind.,  80,  87  (1884)  ;  Becker  v.  Witmer,  1  Pearson,  524 
(Pa.,  1862);  Flanary  v.  Kane,  46  S.  E.,  312,  315   (Va.,  1904).] 

[Improvements  made  by  a  railroad  company  are  no  exception  to  the 
rule.     Fulkerson  v.  Taylor,  46  S.  E.,  309   (Va.,  1904).] 

[The  rule  is  the  same  as  against  a  grantee  of  the  land.  Lessert  v. 
Sieberling,  59  Neb.,  309  (1899)  ;  nor  can  a  grantee  free  the  land  and 
improvements  from  the  liens  by  simply  paying  upon  the  judgments  the 
value  of  the  land  without  the  improvements,  although  he  had  no  actual 
notice  of  the  lien  at  the  time  he  made  the  improvements.  The  doctrine 
that  the  purchaser  at  an  execution  sale  takes  only  the  judgment  debtor's 
title  has  no  application.  Taylor  v.  Morgan,  86  Ind.,  295  (1882).  And 
one  purchasing  land  at  a  sheriff's  sale  is  entitled  to  a  dwelling-house, 
stable,  cistern  and  outbuildings  thereon  as  against  one  claiming  to  have 
previously  bought  them,  Pohlman  v.  DeBouchel,  32  La.  Ann.,  1158,  1159 
(1880).] 

[As  between  a  mortgagee  of  land,  a  chattel  mortgagee  of  fixtures  there- 
on, and  a  subsequent  judgment  creditor,  the  lien  of  the  real  estate  mort- 
gage attaches  to  the  land  and  fixtures;  the  lien  of  the  chattel  mortgage 
attaches  to  the  fixtures  subject  to  the  lien"  of  the  real  estate  mortgage; 
and  the  lien  of  the  judgment  attaches  to  the  land  and  fixtures  subject  to 
the  two  prior  liens.  Ee  Worland,  92  Fed.,  893,  895  (U.  S.  Dist.  Ct.,  Iowa, 
1899).] 

[Where  the  owner  of  land  is  joint-owner  of  a  saw-mill  thereon,  the 
mere  fact  that  a  judgment  has  been  obtained  which  is  a  naked  lien  upon 
the  real  estate  will  not  change  the  character  of  the  mill  from  personal  to 
real  property,  nor  make  the  owner  of  the  realty  own  more,  and  more  val- 
uable, property  than  he  would  own  without  those  liens.  Young  v.  Baxter, 
55  Ind.,  188,  192   (1876).] 

[A  lien  for  taxes  is  on  a  lathe,  weighing  about  three  tons,  as  a  part 
of  the  realty  though  not  fastened.  Green  v.  Chicago,  R.  I.  &  P.  R.  R.  Co., 
8  Kan.  App.,  611,  613  (1899).  But  where  a  lien  for  taxes  attached  to  a 
mill,  which  burned  down,  the  lien  did  not  attach  to  the  engine,  boiler 
and  machinery  severed  by  the  accident.  State  v.  Goodnow,  80  Mo.,  271, 
275  (1883).] 

[Where  a  collector's'  bond  becomes  a  statutory  lien  upon  his  land,  a 
purchaser  of  such  land,  even  before  default,  takes  it  subject  thereto,  and 
it  attaches  to  improvements  made  by  him.  Hook  v.  Richeson,  115  111., 
431,  449    (1886).] 

424 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *288 

the  tenant  or  his  creditors,  by  the  lien  of  a  judgment  against 
the  landlord.2 

And  the  rule  is  possibly  the  same  in  both  the  above  respects 
in  the  case  of  a  mechanics'  lien.^    Where  the  law  relates  only  to 

[A  lien  of  the  unsecured  debts  of  a  decedent  upon  land  attaches  to 
fixtures  annexed  by  a  devisee  of  said  land.  Richmond  v.  Freemans  Nat. 
Bank,  86  App.  Div.,  152   (N.  Y.,  1903).] 

2  See  Coombs  v.  Jordan  (supra).  [See  Campbell  v.  John  W.  Taylor  Co., 
62  N.  J.  Eq.,  307,  312   (1901).] 

[Where,  at  a  foreclosure  sale,  certain  improvements  were  reserved,  a 
judgment  lien  against  the  purchaser  of  the  land  does  not  attach  to  the 
improvements.     Dewey  v.  Walton,  31  Neb.,  819   (1891).] 

3  See  Gray  v,  Holdship,  17  S.  &  E.,  413  (1828),  where  it  was  held  that  a 
copper  brew-kettle  or  boiler  set  up  in  a  brewery  passed  on  a  sale  to  enforce 
a  mechanics'  lien.  See,  also,  Morgan  v.  Arthurs,  3  Watts,  1-40  (1834),  a 
steam  engine;  Heaton  v.  Findlay,  12  Penn.  St.,  307  (1849).  [St.  Louis 
Eadiator  Co.  v.  Carroll,  72  Mo.  App.,  315,  319  (1897) ;  Sosman  v.  Conlon, 
57  Mo.  App.,  25,  32  (1894)  ;  Edwards  Co.  v.  Eank,  57  Neb.,  323  (1899)  ; 
Ward  V.  Kilpatrick,  85  N.  Y.,  413,  419  (1881);  Second  Nat.  Bank  v. 
Hatch,  24  Wash.,  421  (1901);  see,  also,  Hamilton  v.  Delhi  Min.  Co.,  118 
Cal.,  148,  153  (1897);  Arnett  v.  Finney,  29  N.  J.  Eq.,  309,  310  (1878), 
reversing  Case  v.  Arnett,  26  N.  J.  Eq.,  459.]  In  the  case  of  the  Olympic 
Theatre,  2  Browne  (Pa.),  275  (1813),  the  permanent  stage  was  considered 
as  a  part  of  the  freehold  and  subject  to  the  lien ;  but  otherwise  as  to  the 
movable  scenery  and  flying  stages.  [Where  land  is  subject  to  a  mechanics' 
lien,  such  lien  attaches  to  a  boiler  which  is  a  part  of  the  real  estate. 
Second  Nat.  Bank  v.  Hatch,  24  Wash.,  421    (1901).] 

[For  the  purpose  of  the  mechanics'  lien  law,  the  rules  applicable  be- 
tween heir  and  executor  should  be  applied,  and  that  only  should  be  con- 
sidered a  fixture  which  is  so  attached  as  to  become  a  part  of  the  building 
which  is  itself  a  part  of  the  land.  Goodin  v.  EUeardsville  Hull  Ass'n,  5 
Mo.  App.,  289,  294   (1878).] 

[Where  a  mechanics'  lien  attaches  to  a  building  and  land,  and  the 
building  is  destroyed  by  fire,  the  lien  attaches  to  a  building  subsequently 
erected,     Cain  v.  Texas  Loan  Ass'n,  21  Tex.  Civ.  App.,  61,  66   (1899).] 

[The  converse  of  the  rule  is  true — a  mechanics'  lien  upon  a  building 
gives  a  lien  upon  the  interest  or  estate  that  the  person  causing  such 
building  to  bo  made  thereon  has  in  the  land  upon  which  it  is  situated. 
Strang  v.  Pray,  89  Tex.,  525,  528  (1896)  ;  Roby  v.  University,  36  Vt., 
564,  565   (1864).     But  this  is  usually  provided  for  by  statute.] 

A  chattel  mortgage  upon  engines,  boilers  and  saws  (property  which  is 
"the  legitimate  subject  of  fixtures"),  which  afterwards  become,  with  the 
knowledge  and  consent  of  the  mortgagee,  firmly  annexed  to  the  realty  as 
fixtures  in  a  saw  mill,  will  not  be  affected  by  the  lien  of  a  mechanic  hav- 
ing notice  of  the  facts,  for  work  done  by  him  upon  the  mill.  Sowden  v. 
Craig,  26  Iowa,  156  (1868);  and  the  constructive  notice  by  recording  snch 

425 


•289  THE  LAW  OP  FIXTURES.  [CHAP.    IX. 

the  realty,  in  order  to  come  within  the  operation  of  the  statute, 
the  structure  nuist  be  so  annexed  as  to  become  a  part  of  the 
[*289J  *realty.i  Thus,  according  to  the  better  opinion,  a  float- 
chattel  mortgage  before  the  annexation  of  the  chattels  was,  in  this  case, 
regarded  (Dillon,  J.,  dissenting)  as  equally  effectual  for  the  protection 
of  the  mortgagee  as  actual  notice.     See  post. 

[A  laborers'  and  materialmen's  lien  upon  a  mine  does  not  attach  to  an 
engine  and  machinery  which  are  the  property  of  another,  though  affixed 
to  the  realty,  and  though  the  lienors  have  no  notice,  as  their  lien  only 
extends  to  the  owner's  interest.     Jordan  v.  Myres,  126  Cal.,  565   (1899).] 

1  Haeussler  v.  Missouri  Glass  Co.,  52  Mo.,  452  (1873) ;  Graves  v.  Pierce, 
53  Mo.,  423  (1873),  holding  wool-carding  macliines,  etc.,  braced  to  keep 
them  steady,  not  subject  to  lien.  See,  also,  Gray  v.  Holdship;  Morgan  v. 
Arthurs  (cited  swpra)  ;  Collins  v.  Mott,  45  Mo.,  100  (1869)  ;  Koenig  v. 
Mueller,  39  Id.,  165  (1866)  ;  Haworth  v.  Wallace,  14  Penn.  St.,  118 
(1850)  ;  Hartman  v,  Cummiugs,  43  Penn.  St.,  322  (1862) ;  Stockwell  v. 
Campbell,  39  Conn.,  362  (1872).  [Lee  v.  King,  99  Ala.,  246,  249  (1892); 
Silverton  v.  Coe  Mine  Co.,  80  Cal,,  510,  513  (1889)  ;  Michael  v.  Eeeves, 
14  Colo.  App.,  460,  463  (1900);  Chapin  v.  Persse  &  Brooks  Works,  30 
Conn.,  461,  473  (1862);  Schofield  v.  Stout,  59  Ga.,  537  (1877);  Hunter  v. 
Blanchard,  18  111.,  318  (1857)  ;  Compound  Lumber  Co.  v.  Murphy,  169  111., 
343,  346  (1897);  Hill  v.  Bowers,  45  Kan.,  592,  593  (1891);  Consolidated 
Engineering  Co.  v.  Crowley,  105  La.,  615,  635  (1901)  ;  Baker  v.  Fessenden, 
71  Me.,  292,  293  (1880);  Stout  v.  Sawyer,  37  Mich.,  313  (1877);  Progress 
Mach.  Co.  V,  Gratiot  Brick  Co.,  151  Mo.,  501  (1899);  Deardorff  v.  Ever- 
hartt,  74  Mo.,  37,  39  (1881)  ;  Schulenberg  v.  Prairie  Inst.,  65  Mo.,  295, 
296  (1877);  Simmons  v.  Carrier,  60  Mo.,  581  (1875);  John  O'Brien  Boiler 
Co.  V.  Haydock,  59  Mo.  App.,  653  (1894) ;  Current  Eiv.  Lumb.  Co.  v. 
Cravens,  54  Mo.  App.,  216,  220  (1893)  ;  Graton  &  Knight  Co.  v.  Woodworth- 
Mason  Co.,  69  N.  H.,  177,  178  (1897)  ;  Campbell  v.  John  W.  Taylor  Co., 
62  N.  J.  Eq.,  307,  312  (1901);  Ward  v.  Kilpatrick,  85  N.  Y.,  413,  418 
(1881);  Jerecke  Mfg.  Co.  v.  Struther,  14  Ohio  Circ.  Ct.,  400,  405  (1897); 
Fitch  V.  Howitt,  32  Ore.,  396,  409  (1898)  ;  Murphy  v.  Fleetford,  30  Tex. 
Civ.  App.,  487,  488  (1902)  ;  Hinckley  Iron  Co.  v.  James,  51  Vt.,  240,  245 
(1878);  Vendome  Bath  Co.  v.  Schettler,  2  Wash.,  457,  458  (1891);  see, 
also,  Fresno  Bank  v.  Husted,  49  Pac,  195  (Cal.,  1897)  ;  Shakspeare  v. 
Ware,  38  La.  Ann.,  570,  574  (1886)  ;  Shine  v.  Heimburger,  60  Mo.  App., 
174,  185  (1894);  Buchanan  v.  Cole,  57  Mo.  App.,  11  (1894);  Meistrell  v. 
Eeach,  56  Mo.  App.,  243  (1893);  H.  F.  Cady  Lumber  Co.  v.  Greater  Am. 
Exposition  Co.,  93  N.  W.,  961   (Neb.,  1903);  Jerecki  Mfg.  Co.  v.  Struther, 

14  Ohio  Circ.  Ct.,  400,  405  (1897).] 

[Reservation  of  ownership  by  seller  does  not  make  the  article  personal 
property  to  the  extent  of  preventing  a  claim  for  a  mechanics'  lien  on 
account  of  attachment  to  the  freehold.     Great  West.  Mfg.  Co.  v.  Hunter, 

15  Neb.,  32,  38  (1883) ;  Salt  Lake  Hardware  Co.  v.  Chainman  Mining  Co., 

426 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *289 

128  Fed.,  509,  511  (U.  S,  C.  C,  Nev.,  1904)  ;  Cooper  v.  Cleghorn,  50  Wis., 
113,   121    (1880).] 

[Where  an  article  is  intended  and  designed  as  a  fixture,  but  is  not 
annexed,  owing  to  the  neglect  of  the  land-owner,  the  lien  will  not  be  de- 
feated.    Spruhen  v.  Stout,  52  Wis.,  517,  525   (1881).] 

[Mechanics'  lien  not  allowed  for  the  following  articles:  drying-machine. 
Curnew  v.  Lee,  143  Mass.,  105,  108  (1886)  ;  machines  connected  by  belting, 
removable  at  pleasure.  Haslett  v.  Gillespie,  95  Pa.  St.,  371,  375  (1880)  ;  ma- 
chinery. Kichardson  v.  Koch,  81  Mo.,  264  (1883).  A  privilege  will  not  be  al- 
lowed for  pieces  of  machinery  for  a  sugar-house,  removable  without  injury. 
Scannell  v.  Beauvais,  38  La.  Ann.,  217  (1886).  Mechanics'  lien  not  allowed 
for  shells  for  cloth  printing  machines,  as  such  shells  are  not  a  part  of  the 
machines,  the  machines  being  complete  without  them,  although  the  bore  of 
the  shell  must  correspond  with  the  diameter  of  the  mandrel  of  the  machine, 
and  the  machines  are  fixed.  A  pattern  is  engraved  upon  the  surface  of  each 
shell,  and  there  may  be  any  number  of  such  shells  used  in  one  machine. 
Griggs  V.  Stone,  51  N.  J.  Law,  549  (1889)  ;  lubricating  oil.  Standard  Oil  Co. 
V.  Lane,  75  Wis.,  636  (1890)  ;  tools.  May  v.  McConnell,  102  Ala.,  577,  581 
(1893).] 

[Mechanics'  lien  allowed  for  an  engine.  Hooven  v.  John  Featherstone 's 
Sons,  111  Fed.,  81,  94  (U.  S.  C.  C.  A.,  Mo.,  1901);  an  engine  for  hoisting 
coal  from  mines.  Dobschuetz  v.  Holliday,  82  111.,  371  (1876)  ;  but  not  for 
a  portable  engine.  Thompson  Mfg.  Co.  v.  Smith,  67  N.  H.,  409,  410  (1892). 
Lien  allowed  for  a  boiler,  Kelley  v.  Border  City  Mills,  126  Mass.,  148, 
150  (1879);  engines,  boilers,  pumps,  blowers,  gearing,  belting,  emery 
wheel,  melting  furnaces,  grinding  mill,  annealing  furnaces  and  smoke  stacks. 
Currier  v.  Cummings,  40  N.  J.  Eq.,  145,  148  (1885)  ;  an  engine,  gas-com- 
pressor and  oil-traps,  and  foundation  plates.  Watts-Campbell  Co.  v. 
Yuengling,  125  N.  Y.,  1  (1890),  aff'g  58  Supr.  Ct.  (51  Hun),  302  (1889); 
gin-stands.  White  v.  ChafiFin,  32  Ark.,  59,  70  (1877)  ;  machinery  for  a  saw- 
mill. Vilas  v.  McDonough  Mfg.  Co.,  91  Wis,,  607,  613  (1895);  a  brick- 
making  machine  bolted  to  a  brick  foundation.  American  Brick  Co.  v. 
Drinkhouse,  59  N.  J.  Law,  462  (1896);  machines  which  are  or  are  to  be 
fastened  to  specially  prepared  foundations,  and  intended  as  a  part  of 
a  permanent  manufacturing  plant.  Campbell  v.  Taylor  Mfg.  Co.,  64 
N.  J.  Eq.,  344  (1902)  ;  brewery  apparatus,  all  connected  ajid  riveted  to 
the  building,  and  made  with  special  reference  thereto,  and  whose  removal 
would  be  commorcially  impracticable.  Scannell  v.  Hub.  Brew.  Co.,  178 
Mass.,  288  (1901);  an  ice  making  apparatus  masoned  to  the  ground,  and 
80  fastened  to  the  building  that  the  latter  would  have  to  be  taken  to  pieces 
in  order  to  remove  the  tanks.  Nason  Mach.  Co.  v.  Upham,  26  App.  Div., 
420  (N.  Y.,  1898)  ;  matte  pots,  forehearth  and  truax  ore  cars,  all  on 
wheels,  and  very  heavy,  and  necessary  for  a  smelting  plant.  Gary  Hard- 
ware Co.  v.  McCarty,  10  Colo.  App.,  200  (1897)  ;  a  sheet  iron  floor  neces- 
sary tot  a  bone-mill,  and  tanks,  upon  the  ground,  extending  through  the 
second  floor,  connected  by  pipes  to  the  boiler,  although  removable  with- 
out injury.     O'Brien  v,  Hansen,  9  Mo.  App.,  545,  550    (1881);   a  planer 

427 


*289  THE  LAW  OP  FIXTURES.  [CHAP.    IX, 

vreigbing  scTenty-six  thousand  pounds,  not  bolted,  but  requiring  a  founda- 
tion, and  connected  by  belt.  Pond  Mach.  Co.  v.  Robinson,  38  Minn.,  272, 
275  (1888)  ;  asbestos  and  magnesia  covering  for  steam  i)i])ing  in  a  dis- 
tillery. Angicr  v.  Bay  State  Co.,  178  Mass.,  163,  170  (1901);  belting  and 
shafting.  Mutual  Loan  Co.  v.  Gashe,  18  Ohio  Circ.  Ct.,  681,  684  (1895).] 
In  Stockwell  v.  Campbell,  a  portable  hot-air  furnace  placed  by  the  owner 
of  the  freehold  in  a  pit  prepared  for  it  in  the  cellar  of  a  house,  but  not  set 
in  brick  or  otherwise  fastened  to  the  house  or  floor,  but  held  in  its  place 
by  its  own  weight,  together  with  the  smoke-pipe  leading  therefrom  to  the 
chimney,  all  capable  of  removal  without  injury  to  themselves  or  the  house, 
but  intended  as  a  permanent  annexation,  as  appeared  from  the  pit  in  the 
cellar  adapted  to  its  size  and  depth,  were  held,  to  be  a  part  of  the  realty, 
rendering  the  whole  house  subject  to  a  mechanics'  lien  for  the  value  thereof 
and  the  labor  of  setting  them  in  the  house.  [A  mechanics'  lien  will  attach 
for  two  furnaces  put  into  a  church.  United  States  Nat.  Bank  v.  Bona- 
cum,  33  Neb.,  820,  823  (1892);  furnace  and  pipes  in  a  theater.  Thielman 
V.  Carr,  75  111.,  385,  392  (1874) ;  a  hot-air  furnace,  including  pipes,  regis- 
ters, etc.,  although  the  furnace  rested  by  its  weight  alone  on  a  platform 
of  brick  built  for  that  purpose  in  the  cellar,  and  the  contract  provided  that 
the  furnace  and  pipes  should  be  so  put  in  that  they  could  be  "removed 
without  disturbing  plastering  or  defacing  ceiling."  Cooke  v.  McNeil,  49 
Mo.  App.,  81  (1892) ;  a  furnace  enclosed  in  brick  and  mortar,  and  pipes 
for  bringing  water  from  cistern  to  house.  Kent  v.  Brown,  59  N.  H.,  236 
(1879)  ;  Monitor  furnaces  weighing  two  thousand  five  hundred  pounds,  put 
up  in  sections,  and  cemented  to  the  brick  ground-floor,  for  heating  a  three- 
story  building  constructed  to  receive  such  a  system  of  heating;  and  regis- 
ters, occupying  holes  cut  into  the  floors,  and  nailed  thereto,  together  with 
the  hot-air  flues  and  cold-air  ducts.  Goodin  v.  Elleardsville  Hall  Ass'n, 
5  Mo.  App.,  289  (1878)  ;  furnaces  and  ranges  for  four  houses  being 
erected.  Turner  v.  Wentworth,  119  Mass.,  459,  465  (1876) ;  a  boiler  and 
furnace  built  in  the  cellar  of  a  hotel,  in  brick  and  cement,  with  pipes  and 
heating  radiators  extending  through  the  hotel.  Stebbins  v.  Culbreth,  86 
Md.,  656,  657  (1898);  range,  fire-place  heaters,  pipes,  registers,  etc. 
Schaper  v.  Bibb,  71  Md.,  145  (1889)  ;  ranges,  boilers,  furnaces,  pipes  and 
registers  connected  with  the  building.  Union  Stove  "Works  v.  Klingman, 
20  App.  Div.,  449  (1897),  aff 'd  164  N,  Y.,  589  (1900)  ;  iron  loops  screwed 
to  pipes  connecting  with  hot  water  radiators  and  running  to  the  basement 
of  a  residence.  St.  Louis  Eadiator  Co.  v.  Carroll,  72  Mo.  App.,  315,  320 
(1897)  ;  heating,  laundry,  and  cooking  apparatus,  including  a  large  soup 
kettle,  some  of  the  articles  not  being  fastened  in  any  way,  but  all  for 
permanent  use  in  a  large  hotel,  and  being  fixtures  under  the  Pennsylvania 
rule.  Dimmick  v.  Cook  Co.,  115  Pa.  St.,  573  (1887) ;  see,  also,  Eeilly  v. 
Hudson,  62  Mo.,  383  (1876),  as  to  an  ordinary  cooking  range.  In  the 
following  cases  the  articles  named  were  held  not  to  be  fixtures  within 
the  mechanics'  lien  law.  A  furnace  in  three  sections,  weighing  fifteen  hun- 
dred pounds,  resting  upon,  but  not  fastened  to  a  base  of  brick-work,  in- 
cased with  brick  and  mortar.    Baldwin  v.  Merrick,  1  Mo.  App.,  281  (1876) ; 

428 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *289 

a  portable  heater.  Elston  v.  Jury,  9  Mont.  Co.  (Pa.),  92  (1892);  port- 
able cooking  ranges  connected  with  the  water  pipes  of  the  building.  Bos- 
ton Furnace  Co.  v.  Dimock,  158  Mass.,  552,  554  (1893) ;  a  portable  laundry 
stove.  Harrison  v.  Homeopathic  Ass'n,  134  Pa.  St.,  558,  565  (1890); 
Homeopathic  Ass'n  v.  Harrison,  120  Pa.  St.,  28  (1888);  a  cylinder  stove 
and  funnel  for  a  grist-mill.  Lambard  v.  Pike,  33  Me.,  141,  144  (1851); 
a  portable  stove  connected  only  to  water-pipes.  "Williams  v.  Bower,  11  Pa. 
Co.,  151,  152  (1892) ;  a  flue-stop  to  cover  a  stove-pipe  flue  opening  in  a 
chimney  from  the  interior  of  the  house,  and  removable  at  pleasure.  Mis- 
soula Mercantile  Co.  v.  O'Donnell,  24  Mont.,  65,  71   (1900).] 

[A  mechanics'  lien  was  allowed  in  the  following  cases:  For  a  house 
nailed  to  posts  driven  into  the  ground,  with  a  chimney  set  in  the  ground, 
and  extending  up  through  the  house.  There  was  no  cellar  under  the  house, 
nor  was  the  house  plastered  to  the  chimney.  Dodge  v.  Hall,  168  Mass., 
435,  441  (1897)  ;  lightning  rods.  Harris  v.  Schultz,  64  Iowa,  539,  540 
(1884);  wall-paper.  LaGrill  v.  Mallard,  90  Cal.,  373,  376  (1891);  wain- 
scoting, oak  veneering,  a  partition,  doors,  etc.  Matthiesen  v.  Arrata,  32 
Ore.,  342,  347  (1897)  ;  shelving  toe-nailed  to  the  walls  and  floor,  and  of 
different  lengths  and  widths  to  conform  to  the  contour  of  the  store.  Einzel 
V.  Stumpf,  116  Wis.,  287,  291  (1903)  ;  gas  fittings.  Jarechi  v.  Philharmonic 
Soc,  79  Pa.  St.,  403  (1875)  ;  chandeliers  and  bracket  lights.  McFarlane 
V.  Foley,  27  Ind.  App.,  484,  488  (1901);  gas  fixtures.  Baum  v.  Covert,  62 
Miss.,  113,  120  (1884)  ;  but  in  Jarechi  v.  Philharmonic  Soc,  79  Pa.  St., 
403  (1875),  a  lien  was  denied  for  gas  fixtures.  Lien  allowed  for  electric 
•wires,  conduits,  switches,  etc.,  for  lighting  a  house.  Scannevin  v.  Con- 
solidated Water  Co.,  55  Atl.,  754  (E.  I.,  1903) ;  an  electric  passenger  ele- 
vator. Lefler  v.  Forsberg,  1  App.,  D.  C,  36,  41  (1893)  ;  elevator.  Henry  & 
Coatsworth  Co.  v.  Fisherdick,  37  Neb.,  207,  222  (1893)  ;  see,  also  Sohenck 
V.  Uber,  81  Pa.  St.,  31,  34  (1876) ;  an  Elkins  Gas  Machine,  part  being 
fixed  in  a  brick  pit  outside,  and  connected  by  underground  pipes  with  the 
remaining  part  which  was  firmly  fixed  to  the  cellar  walls.  Pennsylvania 
Gas  Co.  v.  Gill,  1  Pa.  Dist.,  538  (1892),  afif'g  28  Weekly  Nts.  Cas.,  36 
(1891);  opera  chairs.  Grosz  v.  Jackson,  6  Daly,  463  (N.  Y,  C.  P.,  1876); 
drop-curtains,  wings,  scenery  and  other  articles  constituting  the  stage  out- 
fit of  an  opera-house.  Waycross  Co.  v.  Sossman,  94  Ga.,  100  (1894)  ;  pul- 
leys, rollers,  curtains,  painting,  scenery  and  other  stage  machinery,  and 
chairs  in  a  theater.  Halley  v.  Alloway,  78  Tenn.,  523  (1882) ;  but  in 
Garing  v.  Hunt,  27  Ont.,  149,  151  (1895),  a  lien  was  denied  for  movable 
scenery.  Lien  allowed  for  a  windmill,  Phelps  &  Bigelow  Co.  v.  Baker,  49 
Kan.,  434  (1892);  Phelps  &  Bigelow  Co.  v.  Shay,  32  Neb.,  19,  23  (1891); 
windmill  and  pump.  United  States  Investment  Co.  v.  Phelps  &  Bigelow  Co., 
54  Kan.,  144,  146  (1894)  ;  a  pump  planted  down  on  the  ground  and  con- 
nected to  pipes  so  as  to  admit  the  steam  and  water.  Gnss  v.  Helbing,  77 
Cal.,  190,  191  (1888);  a  bolting  cloth  for  a  flouring  mill,  tacked  to  reels 
connected  with  the  machinery  and  steam  power,  although  the  reels  are  re- 
movable without  injury  to  the  building,  and  although  the  cloth  may  be 
removed  from  the  reels  by  extracting  the  tacks,  but  which  arc  not  ordinarily 

429 


•289  THE   LAW   OF   FIXTURES.  [CHAP,    IX. 

removed  unless  worn  out  or  injured,  or  unless  the  mill  is  to  be  idle  for  a 
considerable  time,  when  it  was  customary  to  remove  them  and  clean  them 
and  pack  them  away  for  protection  against  moths.  Heidegger  v.  Atlantic 
Milling  Co.,  IG  Mo.  App.,  327  (1884);  millstones.  Wademan  v.  Thorp,  5 
Watts,  115,  116  (Pa.,  1836)  ;  double-deck  cars  each  having  the  capacity  of 
carrying  five  hundred  brick,  used  upon  a  track  built  for  the  purpose  in  a 
drier  in  a  brick-yard.  Curran  v.  Smith,  37  111.  App.,  69  (1890)  ;  wheels 
and  the  axles  connecting  them,  such  wheels  being  fitted  to  a  wooden 
tramway  running  through  a  dry  kiln  for  lumber,  and  constructed  espe- 
cially for  the  use  of  the  wheels,  and  useless  without  them.  Meek  v.  Parker, 
63  Ark.,  367  (1897);  see  Central  Tr.  Co.  v.  Sheffield  Coal  E'y  Co.,  42 
Fed.,  106,  110  (U.  S.  C.  C,  Ala.,  1890),  as  to  coal  cars  for  a  mine;  a  box 
used  in  hoisting  coal  from  a  mine,  and  which  is  connected  with  other 
machinery  attached  to  the  realty.  Dobschuetz  v.  Holliday,  82  111.,  371, 
376  (1876);  four  steel  tanks,  one  hundred  and  five  feet  long,  and  six  and 
one-half  feet  in  diameter,  put  together  on  the  premises,  and  placed  on 
heavy,  solid  foundations  of  concrete  and  brick,  and  then  having  a  building 
erected  around  them,  the  whole  constituting  one  structure  for  the  pur- 
pose of  vulcanizing  wood.  Haskin  Wood  Co.  v.  Cleveland  Co.,  94  Va.,  439, 
447   (1897).] 

[See  Lothian  v.  Wood,  55  Cal.,  159,  163  (1880),  that  a  dancing-hall,  rest- 
ing upon  sills^  covered  and  partly  weather-boarded  around  the  sides,  with- 
out doors  or  windows,  and  swings  consisting  of  two  upright  posts  set  in 
the  ground  and  braced  and  connected  at  the  top  by  a  cross-piece  with  rings 
in  it,  are  not  within  the  mechanics'  lien  law.  And  a  mechanics'  lien  was 
not  allowed  in  the  following  cases:  mirrors  supported  by  screws  attached 
to  a  holdfast  driven  through  a  wooden  plug  into  the  walls,  annexed  some 
time  after  the  building  had  been  erected,  and  easily  removed  without  injury 
to  the  walls.  Vogel  v.  Farrand,  55  N.  Y.  Supp.,  977  (1899)  ;  tables  used 
as  counters.  Baum  v.  Covert,  62  Miss.,  113,  120  (1884)  ;  tables  having  no 
connection  with  the  freehold.  Kinzel  v.  Stumpf,  116  Wis.,  287,  291  (1903)  ; 
hose  connected  with  water-pipe  for  the  protection  of  a  hotel  against  fire. 
Latta  V.  Cambridge  Springs  Co.,  25  Pa.  Co.,  310   (1901).] 

[A  mechanics'  lien  will  not  be  allowed  for  structures,  although  fixed 
to  the  freehold,  where  they  are  temporary  and  are  erected  merely  to  aid  in 
the  erection  of  permanent  structures;  as  scaffolding  used  in  laying  brick 
for  a  building.  Oppenheimer  v.  Morrell,  118  Pa.  St.,  189  (1888);  forms 
to  hold  concrete  in  place  while  hardening.  Kennedy  v.  Commonwealth, 
182  Mass.,  480  (1903)  ;  a  timber  structure  put  up  by  a  contractor  to  escape 
penalty  for  delay  in  completing  a  bridge,  and  used  until  steel  spans  could 
be  obtained.  Stimson  Mill  Co.  v.  Los  Angeles  Traction  Co.,  141  Cal.,  30 
(1903).] 

In  Edwards  v.  Derrickson,  28  N.  J.  Law,  39  (1859)  ;  s.  c,  29  Id.,  468,  a 
mill  flume  constructed  of  wood  and  leading  the  water  from  the  dam  to  the 
wheel  inside  the  mill,  was  held  to  be  a  fixture  within  the  meaning  of  the 
Mechanics'  Lien  Law  of  New  Jersey,  providing  that  "fixed  machinery  or 
gearing,  or  other  fixtures  for  manufacturing  purposes  shall  be  considered  a 

430 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *289 

ing  dock  is  neither  a  building  nor  a  fixture.^  In  such  a  case, 
also,  buildings  and  fixtures  erected  by  a  lessee  for  years  for  the 
purposes  of  trade,  or  property  which  would  otherwise  be  real, 
but  is  made  personal  property  by  agreement,  and  hence  is  sub- 
ject to  removal  as  against  the  owner  of  the  soil,  being  personal 
property,  are  not  subject  to  a  mechanics'  lien  filed  against  the 
interest  of  the  tenant  or  party  making  the  annexation.^ 

building  for  the  purposes  of  this  act,"  etc.  [Wires  connecting  an  electric 
light  wire  with  various  houses  are  "other  fixtures"  although  neither  the 
poles  nor  the  houses  are  on  land  of  the  party  who  owns  the  wires.  Hughes 
V.  Lambertv-ille  Light  Co.,  53   N.  J.  Eq.,  435,  437    (1895).] 

[Mechanics'  lien  allowed  for  wires,  poles,  lamps  and  other  attachments  in 
city  streets,  connected  with  the  power-house,  and  absolutely  necessary  to 
the  operation  of  an  electrical  plant.  Southern  Supply  Co.  v.  Eolla  Light 
Co.,  7.5  Mo.  App.,  622,  629  (1898)  ;  Keating  Mach.  Co.  v.  Marshall  Power 
Co.,  74  Tex.,  605  (1889).  Likewise,  for  iron  pipe  laid  under  the  city 
streets,  and  connected  with  the  pumping  works.  National  Pipe  Works  v. 
Oconto  Water  Co.,  52  Fed.,  43,  51  (U.  S.  C.  C,  Wis.,  1892),  aff 'd  59  Fed., 
19  (U.  S.  C.  C.  A.,  Wis.,  1893)  ;  and  for  pipes  in  city  streets  for  con- 
ducting cold  vapor  from  a  factory.  Steger  v.  Arctic  Eefrigerating  Co., 
89  Tenn.,  453  (1891).  A  drain-pipe  from  a  house  to  a  sewer  in  a  street 
is  a  part  of  the  house  within  the  mechanics'  lien  law;  and  it  is  imma- 
terial whether  it  is  above  or  under  ground,  or  whether  or  not  the  fee  of 
the  street  is  in  the  owner  of  the  house.  Beatty  v.  Parker,  141  Mass.,  523, 
526   (1886).] 

[A  mechanics'  lien  can  not  be  obtained  for  rails  used  in  the  construc- 
tion of  a  street  cable  railway,  as  the  company  has  no  interest  in  the  land 
to  which  the  lien  can  attach;  nor  can  such  lien  attach  to  the  land  upon 
which  the  power-house  stands  and  with  which  the  track  is  connected,  as 
none  of  the  material  was  used  upon  such  land.  Pacific  ^lills  Co.  v.  James 
Construction  Co.,  68  Fed.,  966  (U.  S.  C.  C.  A.,  Wash.,  1895).] 

[A  mechanics'  lien  will  not  be  allowed,  against  the  lessor,  for  partitions 
put  up  by  a  lessee.  Hanson  v.  News  Pub.  Co.,  97  Me.,  99  (1902)  ;  nor  for 
trade  fixtures  erected  by  a  tenant.  McMahon  v.  Vickery,  4  Mo.  App.,  225 
(1877).] 

2Coddington  v.  Dry  Dock  Co.,  29  N.  J.  Law,  550  (1862);  s.  c,  31  Id., 
477. 

See,  however,  contra,  Olmstead  v.  McNall,  7  Blackf.,  387  (1845),  a 
floating  warehouse;  Galbreath  v.  Davidson,  25  Ark.,  490  (1869),  a  wharf- 
boat. 

3  Church  v.  Griffith,  9  Penn.  St.,  117  (1848);  White's  Appeal,  10  Penn. 
St.,  252  (1849).  [Carroll  v.  Shooting  the  Chutes  Co.,  85  Mo,  App.,  56.3, 
565  (1900)  ;  John  O'Brien  Boiler  Co.  v.  Haydock,  59  Mo.  App.,  653  (1894)  ; 
Asheville  Co.  v.  Southwi.-k,  119  N.  C,  611,  616  (1896);  TToncyman  v. 
Thomas,   25   Ore.,   539    (1894):    Patterson   v.  Gallagher,   25   Ore.,   227,   228 

431 


*289  THE  LAW   OF   FIXTURES.  [CHAP.    IX. 

(1894);  Truxall  v.  Williams,  83  Tenn.,  427  (1885);  see,  also,  Beldiiig  v. 
Cushiiig,  67  Mass.,  576  (1S54)  ;  Waterman  v.  Stout,  38  Neb.,  396,  402 
(1893);  Kellogg  v.  Littoll  &  Smythe  Co.,  1  Wash.,  407   (1890).] 

[The  rule  is  the  same  iu  the  ease  of  a  licensee  of  a  mine.  Springfield 
Co.  V.  Cole,  130  Mo.,  I,  7    (1895).] 

Under  sect.  20  of  the  Mechanics'  Lien  Law  of  111.,  an  incumbrancer 
anterior  to  the  mechanics'  lien  looks  only  to  the  land  as  it  was  before 
the  lien  attached,  and  the  mechanics  or  material  men  to  the  improvement 
or  materials,  unless  the  proceeds  will  pay  both,  or  there  is  a  surplus  of 
either  fund,  which,  if  necessary,  may  be  applied  to  satisfy  the  other  lien. 
Moore  v.  Smith,  26  111.,  392  (1861).  [See  First  Nat.  Bank  v.  Elmore,  52 
Iowa,  541,  550   (1879).] 

And  if.  such  materials  or  improvements  (steam-boilers  and  gauge-cocks 
in  this  case)  become  severed  from  the  freehold  by  fire,  the  lien  is  not 
thereby  destroyed;  and,  if  sold,  the  lien  will  (in  equity)  attach  to  the  pro- 
ceeds. Gaty  V.  Casey,  15  111.,  189  (1853);  Ellett  v.  Tyler,  41  111.,  449 
(1866).  See,  also,  Hammer  v.  Johnson,  44  111.,  192  (1867),  where  one-half 
of  the  proceeds  of  the  sale  of  a  boiler  severed  by  fire  was  still  held  liable 
to  lien  of  the  vendor  of  tbe  mill.     [See,  ante,  p.  *43.] 

See,  also,  as  to  the  construction  of  the  statutes  creating  a  lien  for  labor, 
materials,  etc.,  upon  the  interest  of  the  lessee,  Esterley's  Appeal,  54  Penn. 
St.,  192  (1867),  where  a  temporary  railroad  constructed  by  a  lessee  in  the 
slope  of  a  coal  mine,  was  held  not  to  be  an  improvement  or  a  fixture  to 
which  a  mechanics'  lien  will  attach  under  the  act  of  1858,  giving  a  lien 
upon  ' '  improvements,  engines,  pumps,  machinery,  screens  and  fixtures  re- 
paired, erected  or  set  up;"  McGreary  v.  Osborne,  9  Cal.,  119   (1858). 

[Where  the  statute  provided  that  a  lien  should  be  allowed  on  machinery, 
fixtures,  etc.,  "capable  of  being  severed  or  removed  from  such  previous 
building  without  material  injury  thereto,"  a  lien  was  allowed  for  new 
machinery  substituted  by  a  tenant  in  a  flouring  mill  as  against  the  mort- 
gagor of  the  land  claiming  such  machinery  as  a  part  thereof.  Slocum  v. 
Caldwell,    12   Ky.   L.   E.,    514    (1890).] 

[An  agreement  between  the  lessor  and  lessee  that  an  engine  and  hoist- 
ing apparatus  in  a  mine  shall  be  treated  as  personalty,  can  not  change 
their  character  so  far  as  third  parties  are  concerned,  and  a  mechanics'  lien 
will  attach  to  the  leasehold  and  the  fixtures.  Dobschuetz  v.  Holliday,  82 
111.,  371,  374  (1876)  ;  Hathaway  v.  Davis,  32  Kan.,  693  (1884)  ;  Zabriskie 
V.  Greater  Am.  Exposition  Co.,  93  N.  W.,  958  (Neb.,  1903)  ;  Hilton  Lum- 
ber Co.  V.  Murray,  47  App.  Div.,  289,  293  (N.  Y.,  1900).  A  lien  will  be 
allowed  where  the  tenant  had  the  privilege  of  taking  a  ground  rent.  Gaule 
V.  Bilyeau,  25  Pa.  St.,  521,  523  (1855).  Where  a  lien  is  authorized  by 
statute,  against  leasehold  interests,  it  may  be  claimed  for  machinery  al- 
though trade  fixtures.  Nordyke  v.  Hawkeye  Woolen  Co.,  53  Iowa,  521,  525 
(1880);  Forbes  v.  Mosquito  Club,  175  Mass.,  432  (1900);  Hart  v.  Globe 
Iron  Works,  37  Ohio  St.,  75,  77  (1881)  ;  but  where,  by  statute,  a  lien  ia 
given  upon  improvements  made  by  a  lessee,  it  does  not  extend  to  such  as 
he  has  no  right  to  remove.  Stenberg  v.  Liennemann,  20  Mont.,  457 
(1897).]  432 


CHAP.   IX. J  GRANTOR    AND    GRANTEE,    ETC.  *290 

*With  regard  to  the  question,  whether,  in  the  absence  [*290] 
of  any  specific  intention  on  the  subject  appearing  in  the  instru- 
ment, the  article  in  controversy  is  or  not  in  law  a  part  of  the 
realty,  and  so  goes  with  the  land  to  the  grantee  or  mortgagee, 
the  cases  are  involved  in  great  confusion.  It  seems,  however, 
conceded  by  nearly  all  the  authorities  that  as  between  grantor 
and  grantee,  etc.,  articles  firmly  and  substantially  attached  to 
the  freehold  by  the  owner  of  the  inheritance,  essential  to  its  full 
and  beneficial  enjoyment,  adapted  and  intended  to  the  use  and 
design  of  the  real  estate,  are  parcel  thereof  and  pass  therewith.^ 
And  it  is  accordingly  quite  generally  held  that  steam-engines, 
steam-boilers,  etc.,  shafting  and  gearing,  and  other  like  articles 
which  are  usually  substantially  and  permanently  attached  to 
the  realty,  pass  by  a  conveyance  or  mortgage  of  the  land.^ 

It  is  on  the  other  hand  (with  the  exception  of  cases  of  con- 
structive annexation  to  be  again  referred  to),  quite  generally 
held,  that  articles  of  a  chattel  nature  in  no  wdse  annexed  to 
the  realty  do  not  pass  by  a  conveyance  thereof.^ 

1  See  Crane  v.  Brigham,  11  N.  J.  Eq.,  29,  36  (1855)  ;  Brennan  v.  Whit- 
aker,  15  Ohio  St.,  446  (1864).  See,  also,  ante  p.  *275,  note  (3).  [Fratt 
V.  Whittier,  58  Cal.,  126,  130  (1881);  Leonard  v.  Stickney,  131  Mass.,  541, 
542  (1881);  Farmers'  L.  &  T.  Co.  v.  Minneapolis  Works,  35  Minn.,  543 
(1886);   Canning  v.   Owen,  22  R.  I.,  624,  628    (1901).] 

2  See  cases  cited  ante  p.  *275,  note  (3). 

[All  machinery  immediately  connected  with  and  operated  by  gearing  and 
shafting,  instead  of  by  belting,  is  as  much  a  part  of  the  realty  as  the 
gearing  and  shafting.  Scheifele  v.  Schmitz,  42  N.  J.  Eq.,  700,  701 
(1887).] 

3  See  Kirwan  v.  Latour,  1  Har.  &  John.,  289  (1802),  where  it  was  held 
on  a  sale  on  execution  of  a  distillery  with  the  improvements,  that  vats, 
buckets,  pickets  and  faucets,  not  fixed  to  the  freehold,  did  not  pass; 
McClintock  v.  Graham,  3  McCord,  553  (1826),  semblc  as  to  a  still  set  up  in 
a  rock  furnace  built  against  the  wall  of  the  house,  being  a  mere  tem- 
porary thing  not  indispensably  necessary  to  the  enjoyment  of  the  land, 
nor  actually  fixed  to  any  part  of  the  freehold;  Swift  v.  Thompson,  9 
Conn.,  63  (1831);  Bennett  v.  Allen  (1857),  2  Clint.  N.  Y.  Dig.,  p.  1416, 
pi.  48,  49;  Walker  v.  Sherman,  20  Wend.,  636  (1839);  Baker  v.  Davis,  19 
N.  H.,  325,  332  (1849);  Hutchinson  v.  Kay,  23  Beav.,  413  (1857),  looms 
having  their  legs  set  into  iron  cups  dropped  into  holes  in  the  pavement,  but 
otherwise  not  fixed;  Despatch  Line  v.  Bellamy  Manf'g  Co.,  12  N.  IL,  205 
(1841);  Pierce  v.  George,  108  Mass.,  78  (1871);  Brown  v.  Lillie,  6  Nov., 
244  (1870),  a  saw-mill  built  upon  timbers  lying  upon  the  surface  of  the 
ground,  with  brick-work  constructed  upon  those  timbers,  and  the  engine, 

28  433 


•290  THE  LAW   OF  FIXTURES.  [CIIAP.   IX. 

boiler  auil  machinery  attached  to  it,  constructed  for  the  purpose  of  sawing 
the  timber  within  a  convenient  distance  and  then  to  be  removed  to  some 
other  locality  where  there  was  timber,  held,  to  be  a  mere  chattel,  not 
passing  by  a  patent  of  the  land;  Ex  parte  Astbury,  L.  K.,  4  Ch.  App.,  630 
(18(59),  weighing-machines  placed  on  brick-work  in  holes  in  the  ground 
faced  with  brick,  but  not  otherwise  aflB.xedj  also  similar  machines  placed 
on  wheels. 

[The  following  articles  do  not  pass  as  a  part  of  the  realty:  Casks, 
tubs,  coolers,  swimmers,  ice-tools,  a  rotary  pump,  pitching  machine  and 
kettle,  some  of  them  very  ponderous,  and  constructed  for  permanent  use, 
and  essential  for  a  brewery,  but  not  physically  attached.  Wolford  v.  Bax- 
ter, 33  Minn.,  12,  18  (1884)  ;  packing-cases,  bottles  and  casks  in  a  brew- 
ery. Fitzgerald  v.  Atlanta  Ins.  Co.,  61  App.  Div.,  350,  355  (N.  Y.,  1901)  ; 
see,  also,  Scobell  v.  Block,  89  Supr.  Ct.  (82  Hun),  223  (N.  Y.,  1894);  a 
stove  pattern  in  a  foundry.  Sampson  v.  Graham,  96  Pa.  St.,  405,  409 
(1880)  ;  patterns  and  tools.  Foote  v.  Gooch,  1  S.  E.,  529  (N.  C,  1887)  ; 
tools.  Williams'  App.,  1  Monaghan,  274  (Pa.,  1889);  a  planer  kept  in 
position  upon  timbers  by  its  own  weight,  a  hoisting-block  and  chain  con- 
nected by  a  hook  to  an  eye  fastened  above  but  readily  disconnected,  turning 
lathes  and  a  drill  press  connected  by  belting.  Eoddy  v.  Brick,  42  N.  J.  Eq., 
218  (1886);  a  planer.  Canada  Sav.  Co.  v.  Merchants'  Bank,  3  Man.,  285 
(1886)  ;  a  steam  winch  bolted  to  a  large  stone  upon  the  floor.  Irish  Bldg. 
Soc.  V.  Mahony  (1876),  10  Irish  E.  Law,  363,  369;  boilers  not  attached. 
Hacker  v.  Munroe,  176  111.,  384  (1898),  aff'g  61  111.  App.,  420  (1895); 
56  111.  App.,  532,  540  (1894);  Early  v.  Burtis,  40  N.  J.  Eq.,  501,  502 
(1885);  Schreiber  v.  Malcolm,  8  Gr.  Ch.,  433  (Ont.,  1860);  a  shed,  the 
posts  thereof  set  in  the  ground,  a  boiler  set  in  a  brick  furnace  built 
upon  and  in  the  ground,  and  saw-mill  machinery,  all  easily  detached. 
Young  V.  Baxter,  55  Ind.,  188,  193  (1876)  ;  a  saw-mill  needed  upon  land 
no  longer  than  necessary  to  work  the  timber.  Burrill  v.  "Wilcox  Lumber 
Co.,  65  Mich.,  571,  575;  a  portable  saw-mill  and  engine,  moved  from  place 
to  place  as  business  required.  Henkle  v.  Dillon,  15  Ore.,  610,  616  (1888)  ; 
see,  also,  Kendall  v.  Hathaway,  67  Vt.,  122,  126  (1894)  ;  a  cotton-gin  and 
band.  Gresham  v.  Taylor,  51  Ala.,  505,  507  (1874)  ;  Smith  v.  Odom,  63 
Ga.,  499,  503  (1879)  ;  a  hop-press,  removable  by  taking  up  a  portion  of  the 
flooring.  Sherrick  v.  Cotter,  28  Wash.,  25  (1902)  ;  a  porgy  jenny,  plat- 
form scale,  windlasses  and  reel  flyers,  not  annexed.  Knickerbocker  Trust 
Co.  V.  Penn  Cordage  Co.,  58  Atl.,  409,  410  (N.  J.,  1904)  ;  machinery  not 
attached.  Landenberger  v.  Berges,  15  Phila.,  96,  97  (1882) ;  hay-scales, 
hung  upon  hooks  in  a  pit  prepared  for  them.  Markle  v.  Houck,  19  Up. 
Can.,  Q.  B.,  164,  167  (1860);  a  green-house  not  attached.  Royce  v.  Lat- 
shaw,  15  Colo.  App.,  420,  425   (1900).] 

See,  also.  Peck  v.  Brown,  5  Nev.,  81  (1869) ;  Woodruff  v.  Roberts,  4  La. 
Ann.,  127  (1849);  Carpenter  V.  Lewis,  6  Ala.,  682  (1844);  Wincher  v. 
Shrewsbury,  3  111.,  283  (1840)  ;  Robertson  v.  Phillips,  3  G.  Greene,  220 
(1851),  cases  where  cordwood,  timber,  boards,  rails  (not  laid  in  a  fence), 
brick,  etc.,  cut  and  made  on  government  land,  were  held  not  to  pass  with 

434 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC,  *290 

the  land  to  a  subsequent  purchaser,  though  still  remaining  thereon; 
Crouch  V.  Smith,  1  Md.  Ch.,  401  (1849),  and  Cook  v.  Whiting,  16  111.,  480 
(1855),  hewed  timber,  posts,  etc.,  lying  on  the  land;  Noble  v,  Sylvester,  42 
Vt.,  146  (1869),  a  stone  split  out  from  the  ledge  for  the  purpose  of  a  tomb; 
Woodman  v.  Pease,  17  N.  H.,  282  (1845),  a  stone  quarried  and  brought 
from  a  distance  into  a  door-yard  for  the  purpose  of  being  made  into  a 
door-step,  but  not  actually  so  placed, 

[The  following  do  not  pass  as  a  part  of  the  realty:     Wood  cut  and 
piled  upon  State  land.     Schmidt  v.  Vogt,  8  Ore.,  344,  347   (1880)  ;  timber 
cut  upon  Government  land.     Brock  v.  Smith,  14  Ark.,  431    (1854)  ;   trees 
cut.     Jenkins  v.  Lykes,  19  Fla.,  148,  158   (1882)  ;  Fitzpatrick  v.  HofiPman, 
104  Mich.,  228,  230   (1895)  ;  Ind.  School  Dist.  of  W.  Point  v.  Werner,  43 
Iowa,  643,  644  (1876)  ;  Hiekey  v.  Eutledge,  98  N.  W.,  974   (Mich.,  1904)  ; 
poles  in  a  pile.     Yale  v,  Seely,  15  Vt.,  221,  232   (1843)  ;   lumber.     Howell 
V.  Barnard,  32  111.  App.,  120,  121   (1889)  ;  see,  also,  Banfil  v.  Twyman,  71 
111.  App.,  253,  255   (1896),  aff'd  172  111.,  123   (1898);   stakes  and  boards 
piled  upon  a  farm,  and  intended  for  general  repairs.     Hinkle  v.  Hinkle,  69 
Ind.,    134,    136    (1879)  ;    unused   fence   rails.      McCarthy   v.   McCarthy,    20 
Can.  Law  T.,  Occ.  N.,  211,  212   (Co.  Ct.,  Ont.,  1900)  ;  see,  also,  Eeyman  v. 
Mosher,  71  Ind.,  596  (1880)  ;  rails  and  brick.     Thweat  v.  Stamps,  67  Ala., 
96,  98    (1880),     Where  a  land-owner,  after  partition,  took  down  a  fence 
which  was  useless,  and  piled  up  the  rails,  they  did  not  pass  to  a  subse- 
quent grantee;  nor  is  the  grantor  estopped  from  claiming  them  because  the 
deed    describes   the   premises    as    "being    the    same    premises   which    were 
assigned  by"  said  commissioners  in  partition. ' '     Harris  v.  Scovel,  85  Mich., 
32   (1891).     Cord-wood  does  not  pass.     Barrett  v.  Choen,  119  Ind.,  56,  58 
(1888);  see,  also,  Frank  v.  Magee,  50  La.  Ann.,  1066,  1068   (1898);  slabs, 
Baw-dust,  shavings  and  other  refuse  matter  piled  up  for  firewood.     Jenkins 
V.  McCurdy,  48  Wis.,   628    (1879)  ;   a   stepping-stone  having  the  name  of 
the  owner  cut  therein,  and  vases  weighing  two  hundred  pounds,  not  fast- 
ened any  way,  and  whose  position  had  been  shifted  several  times.    Pfluger 
V.  Carmichael,  54  App.  Div.,  153,  154   (N.  Y.,  1900);   vases  upon  garden 
walls   and   upon   pedestals,   stone  lions,   and   potted  plants,   although  the 
pots   were    sunk.      Nisbet   v,    Mitchell-Inncs    (1880),    17    Scot.    Law    Rep., 
438 ;  marble  slabs  upon  a  counter,  for  ornament,  the  counter  being  complete 
without   them.     Harmony   Bldg,  Ass'n   v.   Berger,    99   Pa,   St.,    320,    324 
(1882).] 

So,  generally,  as  to  machines  kept  in  their  place  by  their  weight  alone 
and  worked  by  movable  belts.  Be  Trevy,  14  L.  T.  (N.  S.),  193  (1866), 
where  the  same  rule  was  applied  where  there  was  an  iron  so  placed  as  to 
prevent  the  belt  from  being  totally  removed,  the  machine  being  held  in 
place  by  its  weight  only;  Rogers  v.  Brokaw,  25  N.  .1.  Eq.,  496  (1875); 
Longbottom  v.  Berry,  L.  R.,  5  Q.  B.,  123  (1869);  s.  c,  39  L.  J.  (N.  S.), 
Q.  B.,  .37;  Be  Dawson,  Ir.  L.  R.,  2  Eq.,  218  (1868);  Gale  v.  Ward,  14 
Mass.,  352  (1817) ;  Holbrook  v.  Chamberlin,  116  Mass.,  155  (1874),  a  port- 
able wood-cutting  machine;  Cole  v.  Roach,  37  Tex.,  413  (1872);  Taffc  v. 
■Warnick,  3  Blackf.,  Ill   (1852);  Tobias  v.  Francis,  3  Vt.,  425  (1830). 

435 


*': 


290  THE   LAW   OF   FIXTURES.  [CIIAP,   IX. 

[Connection  by  belting  is  not  sufficient  to  make  a  machine  a  part  of  the 
realty.  United  States  v.  Friction-Match  Mach.,  1  Haskell,  32,  35  (U.  S. 
Dist.  Ct.,  iMe.,  186G) ;  Shopard  v.  Blossom,  G6  Minn.,  421,  424  (1896) ; 
Atlantic  Trust  Co.  v.  Atlantic  City  Laundry  Co.,  64  N.  J.  Eq.,  140  (1902)  ; 
Scheifele  v.  Schmitz,  42  N.  J.  Eq.,  700,  701  (1887) ;  Kendall  v.  Hathaway, 
67  Vt.,  122,  126  (1894);  Haggert  v.  Brampton,  28  Can.,  174,  183  (1897); 
Patterson  v.  Johnson,  10  Or.  Ch.,  583  (Ont.,  1864)  ;  Goodcrham  v.  Den- 
holm,  18  Up.  Can.  Q.  B.,  203  (1859)  ;  Carscallcn  v.  Moodie,  15  Up.  Can. 
Q.  B.,  304;  Sun  Assurance  Co.  v.  Taylor,  9  Man.,  89,  98  (1893).  A  copper 
cooler  in  a  brewery,  which,  when  in  use,  is  attached  to  the  building  by  a 
rubber  hose,  but,  during  the  winter,  is  detached  and  stored  away,  does  not 
pass  under  a  mortgage  of  the  land.  Wolford  v.  Baxter,  33  Minn.,  12,  19 
(1884).  A  small  steam  pipe  for  heating,  as  readily  disconnected  by  a 
coupling  as  casting  oflP  a  belt,  is  not  a  sufficient  annexation  to  constitute 
a  machine  a  fixture.  Pope  v.  Jackson,  65  Me.,  162  (1876);  Hyman  v. 
Gordon,  Ohio  Prob.,  189,  193  (1889)  ;  but  see  Atlantic  Trust  Co.  v.  Atlantic 
City  Laundry  Co.,  64  N.  J.  Eq.,  140    (1902).] 

Annexation  is  not,  however,  regarded  as  necessary  in  Pennsylvania  and 
some  other  States.     See  ante  p.  *20,  notes,  and  2^ost  in  this  chapter. 

See,  also.  East  v.  Ealer,  24  La.  Ann.,  129  (1872),  brick  in  a  kiln  held 
not  to  pass;  Key  v.  Woolfolk,  6  Rob.  (La.),  424  (1844)  ;  Nimmo  v.  Allen, 
2  La.  Ann.,  451  (1847);  Civil  Code  La.,  Arts.  459,  460,  464,  465,  468; 
Wiltshear  v.  Cottrell,  1  Ell.  &  Bl.,  674  (1853) ;  Ee  Hitchings,  4  Nat.  Bank. 
Eeg.  (2d  ed.),  384.  [Taylor  v.  Plunkett,  56  Atl.,  384  (Del.,  1903)  ;  South- 
bridge  Bank  v.  Mason,  147  Mass.,  500,  505  (1888)  ;  Hillebrand  v.  Nelson, 
95  N.  W.,  1068,  1070  (Neb.,  1901)  ;  Crane  Iron  Works  v.  Wilkes,  64  N.  J. 
Law,  193,  194  (1899)  ;  Bayne  v.  Brewer  Pottery  Co.,  90  Fed.,  754  (U.  S. 
C.  C,  Ohio,  1898);  Lea  v.  Shakespeare,  10  Mont.  Co.  (Pa.),  171  (1893); 
Burke  v.  Weiss,  1  Luz.  Leg.  Eeg.  E.,  310;  Sun  Assurance  Co.  v.  Taylor,  9 
Man.,  89  (1893) ;  see,  also,  Eeyman  v.  Henderson  Nat.  Bank,  98  Ky.,  748, 
752  (1896).] 

[The  weight  or  size  of  a  machine  is  no  criterion  in  determining  whether 
or  not  it  is  a  fixture,  unless  the  size  be  such  that  the  machine  can  not  be 
removed  without  damaging  the  building.  Eoddy  v.  Brick,  42  N.  .L  Eq., 
218,   225    (1886).] 

[The  following  articles  were  held  not  to  pass  with  the  realty:  A  movable 
platform  scale  on  wheels;  belting  usable  in  connection  with  individual 
machines  which  are  personalty,  and  not  usable  Mithout  them.  Knicker- 
bocker Trust  Co.  V.  Penn  Cordage  Co.,  62  N.  .L  Eq.,  624,  642  (1901)  ;  saws 
and  belting  removed  from  a  mill,  and  stored  in  a  small  building  upon  the 
premises  by  a  tenant  upon  removing  therefrom,  with  request  to  one,  who 
afterwards  preempted  the  land,  to  see  that  they  were  not  disturbed.  Mc- 
Kiernan  v.  Hesse,  51  Cal.,  594,  596  (1877)  ;  belting  which  may  be  re- 
moved by  unloosening.  See  Ee  Welch,  108  Fed.,  367,  368  (U.  S.  Dist.  Ct., 
N.  Y.,  1901 ) ;  counter,  sideboard,  meatblock,  meatrack  and  ice  box.  Grif- 
fin V.  Janson,  19  Ky.  L.  E.,  19  (1897)  ;  awnings  and  signs.  Wilson  v. 
Steel,  13  Phila.,  153,  154  (1879);  but  see  Cosgrove  v.  Troescher,  62  App. 
Div.,  123,  125  (N.  Y.,  1901) ;  pump.    Dutro  v.  Kennedy,  9  Mont.,  101,  105 

436 


CHAP.  IX.]  •      GRANTOR    AND    GRANTEE,    ETC.  *291 

*Between  these  two  extremes  there  are  cases  laying  [*291] 
down  different  and  contradictory  rules.  The  cases  involving 
this  conflict  have  usually  arisen  concerning  articles  of  machinery 
(other,  than  the  engine,  shafting  and  permanent  machinery), 
used  in  mills  and  manufacturing  establishments.  Some  cases 
*have  gone  so  far  as  to  lay  down  the  rule  of  the  common  [*292] 
law  as  applicable  to  mills  and  manufactories,  to  be,  that, 
whenever  the  article  can  be  removed  without  essential  in- 
jury to  the  freehold  or  to  the  article  itself,  it  is  a  chattel; 
otherwise  it  is  a  fixture.^     This  rule  seems,  however,  entirely 

(1889)  ;  electric  switch-boards,  electric  signs,  announcing  the  plays  in  a 
theater,  electric  fans  and  stage  scenery.  New  York  Life  Ins.  Co.  v.  Alli- 
son, 107  Fed.,  179  (U.  S.  C.  C.  A.,  N.  Y.,  1901);  stage  scenery,  not  per- 
manently affixed,  nor  specially  designed  nor  fitted  for  the  building,  but 
could  be  and  had  been  used  in  other  playhouses.  Bender  v.  King,  111  Fed., 
60,  70  (U.  S.  C.  C,  Mont.,  1901)  ;  opera  chairs  of  stock  pattern  screwed  to 
the  floor.  Andrews  v.  Chandler,  27  111.  App.,  103,  110  (1887) ;  piano, 
desk,  chair,  baggage-truck,  stepladder,  center-table,  settee  in  a  theater, 
although  necessary  to  make  it  a  "  going  concern. ' '  Oliver  v.  Lansing,  59 
Neb.,  219,  228  (1899)  ;  organ  in  a  church.  Caraher  v.  Koyal  Ins.  Co., 
70  Supr.  Ct.  (63  Hun),  82,  95  (N.  Y.,  1892);  ash-cans.  Cosgrove  v. 
Troescher,  62  App.  Div.,  123  (N.  Y.,  1901)  ;  a  safe  weighing  about  eight 
thousand  pounds,  resting  upon  a  brick  foundation,  and  enclosed  by  brick 
walls  so  that  it  could  not  be  removed  without  tearing  down  a  part  of  the 
■wall,  and  a  burglar  proof,  combination-lock  iron  chest  weighing  about 
three  thousand  pounds.  Moody  v.  Aiken,  50  Tex.,  65  (1878)  ;  Sheldon  v. 
Cook,  11  Chi.  Leg.  News,  76  (111.  App.,  1878) ;  office  furniture.  Scudder 
V.  Anderson,  54  Mich.,  122^  125  (1884),;  Atlantic  Tr.  Co.  v.  Atlantic  C'y 
Laundry  Co.,  64  N.  J.  Eq.,  140  (1902)  ;  settees.  Chapman  v.  Union  Mut. 
L.  Ins.  Co.,  4  111.  App.,  29,  33  (1879)  ;  a  cabinet  and  mantel  pieces  not 
attached.  L'lloto  v.  Fulham,  51  La.  Ann.,  780,  784  (1899);  mantel-mir- 
rors. Wilson  V.  Cummings,  53  N.  Y.  St.  E.,  584,  585  (1893),  a  portable, 
Boctional  dance  floor.  Security  T.  Co.  v.  Temjjle  Co.,  58  Atl.,  865  (N.  J. 
Ch.,   1904).] 

iSce  Wade  v.  Johnston,  25  Geo.,  331  (1858);  also.  Hill  v.  Wcntworth, 
28  Vt.,  428,  433  (1856);  Fullam  v.  Stearns,  30  Vt.,  443,  452  (1857); 
Bartlctt  V.  Wood,  32  Vt.,  372  (1859);  Harris  v.  Ilaynes,  34  Vt.,  220,  225 
(1861);  Sweetzer  v.  Jones,  35  Vt.,  317  (1862);  Hunt  v.  Mullanphy,  1  Mo. 
(Ist  ed,),  508  (1825);  Graves  v.  Pierce,  53  Mo.,  429  (1873).  fOttumwa 
Mills  Co.  V.  Hawley,  44  Iowa,  57,  63  (1876);  Willis  v.  Mungcr  Mach.  Co., 
13  Tex.  Civ.  App.,  677,  682  (1896);  Dowall  v.  Miln  (1874),  1  Sess.  Cas., 
4th  Ser.,  1180.] 

See,  however,  Dcgraffonreid  v.  Scruggs,  4  Humph.,  451  (1844);  Philip- 
Bon  V.  Mullanphy,  1  Mo.,  620  (1826);  Davenport  v.  Shants,  43  Vt.,  546 
(1871);  and  cases  cited  in  the  following  pages.     [Watertown  Steam  En- 

437 


•292  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

gine  Co.  v.  Davis,  5  Houston,  192,  214   (Del.,  1877);  Eoddy  v.  Brick,  42 
N.  J.  Eq.,  218,  224  (1886)  ;  Newhall  v.  Kinney,  56  Vt.,  591,  593  (1884).] 

In  Fullam  v.  Stearns,  machinery  placed  by  the  mortgagor  in  a  bedstead- 
manufactory  and  grist-mill,  consisting  of  a  planing-machine,  a  machine  for 
cutting  screws,  a  turning-lathe,  circular-saw  and  frame,  and  a  boring- 
macliine,  all  fastened  to  the  building  by  being  spiked  to  the  floors,  studs 
and  posts,  and  propelled  by  water,  the  turning-lachc  and  planing-machine 
being  very  large  and  heavy  and  requiring  to  be  taken  to  pieces  to  be  re- 
moved from  the  mill,  but  all  which  could  be  and  in  fact  were  removed 
without  material  injury  either  to  the  building  or  machinery,  were  held 
to  be  personal  property  and  not  a  part  of  the  realty. 

In  Hill  V.  Wentworth,  an  iron  boiler  in  a  paper-mill,  set  in  brick-work 
laid  on  a  stone  foundation  placed  in  the  ground  iip  to  which  the  floor  was 
laid,  but  attached  to  the  building  in  no  other  way,  together  with  the  iron 
pipe  connected  with  it  by  screws  and  bolts;  engines  for  grinding  rags  into 
pulp,  fixed  in  tubs  standing  on  timbers  up  to  which  the  floors  of  the  build- 
ing were  scribed,  operated  by  a  band  from  shafting  but  not  otherwise 
attached;  paper-presses  with  screws  of  iron  the  lower  ends  of  which  passed 
through  the  floor  but  in  no  other  way  attached  to  the  floor,  the  upper  ends 
surrounded  by  cleats  nailed  to  the  floor  overhead  to  keep  them  in  place, 
which  by  removing  some  iron  nuts  could  be  removed  without  injuring  the 
building;  calender  rolls  in  an  iron  frame  standing  on  timbers  spiked  to  the 
floor  and  with  the  toes  of  the  frames  screwed  to  the  timbers;  a  rag-cutter 
in  a  wooden  frame  standing  on  the  floor  but  in  no  other  way  confined;  a 
trimming-press  set  in  a  frame  screwed  to  the  floor;  a  machine  for  making 
paper  standing  on  the  floor  and  in  no  way  fastened  except  by  cleats  nailed 
round  it  to  the  floor;  all  put  up  by  the  mortgagors  and  necessary  and 
usual  for  the  manufacture  of  paper  in  paper-mills  and  designed  to  be  used 
there  permanently  for  that  purpose  except  when  being  repaired  as  occasion 
required,  were,  as  between  mortgagor  and  mortgagee,  held  to  be  personal 
property. 

So,  in  Harris  v.  Haines,  as  to  stoves  and  pipes  used  for  warming  the 
shop;  a  turning-lathe  upon  a  frame  braced  from  the  floor  above  to  secure 
the  lathe,  but  not  otherwise  fastened;  and  circular  saws  and  arbors  con- 
fined in  tables  braced  in  the  same  manner. 

So,  in  Sweetzer  v.  Jones,  as  to  saw-frames  in  a  marble-mill  fastened  at 
the  top  to  timbers  by  a  bolt  and  nut,  and  extending  to  timbers  on  the 
ground  and  fastened  to  them  with  a  east  iron  step  put  on  the  bottom  of  the 
upright  and  making  a  kind  of  tenant  in  the  building,  but  capable  of  being 
removed  without  injury.     See,  also,  chap.  1,  p.  *17,  note. 

[If  removal  would  have  substantially  injured  the  property  so  as  to  en- 
danger the  security  of  the  lien,  annexation  will  be  conclusive.  Clore  v. 
Lambert,  78  Ky.,  224,  231    (1879).] 

[Machinery  imbedded  in  the  walls  and  floors  so  that  a  removal  woulcT 
impair  the  building,  or  destroy  the  machinery,  is  annexed  so  as  to  become 
a  part  of  the  realty.    McMillan  v.  Fish,  29  N.  J.  Eq.,  610  (1878).] 

[Machines  which  can  not  be  taken  out  without  destroying  them  are  fix- 
tures.   Fish  v.  N.  Y.  Paper  Co.,  29  N.  J.  Eq.,  16,  19  (1878).] 

438 


CHAP.  IX.]  GRANTOR    AND    GRANTEE,    ETC.  *293 

*too  arbitrary,   and  to   be  opposed  to  the   weight   of    [*293] 
modern  authority. 

Other  cases  reject  entirely  the  doctrine  that  physical  annexa- 
tion is  a  necessary  attribute  of  a  fixture,  making  the  test 
whether. the  article  passes  as  a  fixture,  to  be  its  having  been 
fitted  and  prepared  to  be  used  with,  and  being  essential  to  the 
beneficial  enjoyment  of  the  realty.^ 

The  true  rule  is,  however,  believed  to  be  the  one  already 
laid  down  in  the  first  chapter  of  this  work,^  making  the  ques- 
tion depend  upon  the  united  application  of  several  tests,  viz. : 
real  or  constructive  annexation  to  the  realty;  appropriation  or 
adaptation  to  the  use  or  purpose  of  that  part  of  the  realty 
with  which  it  is  connected;  and  lastly,  the  intention  of  the 
party  making  the  annexation  to  make  the  article  a  permanent 
or  habitual  accession  or  annexation  to  the  freehold.^  And  the 
general  course  of  decision  is  in  favor  of  viewing  everything 
as  a  fixture  and  as  passing  by  a  conveyance  of  the  land,  which 
has  been  attached  to  the  realty  with  a  view  to  the  purpose  for 
which  it  is  employed  or  held,  however  slight  or  temporary  the 
connection    between    them,^    provided,    of    course,    that    such 

iSee  the  cases  cited  in  chap.  1,  p.  *20,  note. 

2  Ante,  p.  *21. 

3  This  subject  having  been  already  considered  at  some  length  (ante 
p.  *21)  reference  is  made  to  that  portion  of  the  work,  without  again  re- 
peating it  here. 

The  decision  of  the  question  in  some  cases  seems  to  have  been  influenced 
by  considering  whether  the  annexation  is  accessory  to  a  matter  of  a  per- 
sonal nature,  as  a  trade.  See  Heermance  v.  Vernoy,  6  John.,  5  (1810); 
Teaff  V.  Hewitt,  1  Ohio  St.,  511,  535  (1853)  ;  Farrar  v.  Chauffetete,  5  Den., 
d31  (1848).  What  has  been  said  on  this  subject  in  chap.  6,  p.  *216,  is  be- 
lieved to  be  equally  applicable  here. 

The  subject  considered  in  the  text  is  sometimes  regulated  by  statute. 
6ee  Civil  Code  of  La.,  Arts.  455,  460;  Gary  v.  Burguicres,  12  La.  Ann., 
^27  (1857). 

*  See  Philipson  v.  Mullanphy,  1  Mo.,  620  (1826) ;  Eogers  v.  Crow,  40  Mo., 
..5  (1867);  Johnson  v.  Wiseman,  4  Met.  (Ky.),  357,  360  (1863);  Crane  v. 
l'.righam,  11  N.  J.  Eq.,  29,  35  (1855).  See,  also.  Pierce  v.  George,  108 
.Mass.,  78  (1871).  [Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57  (1876); 
Roddy  v.  Brick,  42  N.  J.  Eq.,  218,  225  (1886);  McMillan  v.  Fish,  29 
N.  J.  Eq.,  610,  612  (1878);  Fish  v.  N.  Y.  Paper  Co.,  29  N.  J.  Eq.,  16 
(1878);  Blanrke  v.  Rogers,  26  N.  J.  Eq.,  563,  .568  (1875);  Knickorbocker 
Trust  Co.  v.  Penn  Cordage  Co.,  58  Atl.,  409,  410   (N.  J.,  1904) ;  Pratt  v. 

439 


*294  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

[*294]  *attachinent  be  iutonded  as  a  permanent  or  habitual  one, 
which  in  the  absence  of  evidence  to  the  contrary  will  in  this 
rehition  ordinarily  be  presumed.^ 

Quite  a  numerous  class  of  cases,  however,  lay  down  the  rule, 
that,  if  articles  of  machinery  used  in  a  factory  for  marrtifactur- 
ing  purposes,  are  only  attached  to  the  buikling  to  keep  them 
steady  and  in  their  places,  so  that  their  use  as  chattels  may  be 

Baker,  99  Supr.  Ct.  (92  Hun),  331,  333  (N.  Y.,  1895) ;  McCrillis  v.  Cole, 
55  Atl.,  196,  198  (K.  I.,  1903);  Siuker  v.  Comparet,  62  Tex.,  470,  476 
(1884);  Shehon  v.  Ficklin,  32  Gratt.,  727,  735  (Va.,  1880);  Patton  v. 
Moore,  16  W.  Va.,  428,  437  (1880)  ;  Bacou  v.  Lewis,  33  Can.  Law  J.,  680 
(Ont.,  1897);  see,  also,  Fratt  v.  Whittier,  58  Cal.,  126,  132  (1881);  Shep- 
ard  V,  Blossom,  66  Minn.,  421,  424  (1896);  Davidson  v.  Westchester  Gas- 
Light  Co.,  99  N.  Y.,  558,  569  (1885)  ;  Richmond  v.  Freemans  Nat.  Bank, 
86  App.  Div.,  152,  158  (N.  Y.,  1903);  Wade  v.  Donau  Brewing  Co.,  10 
Wash.,  284,  289  (1894);  Miles  v.  Ankatell,  25  Ont.  App.,  458  (1898),  re- 
versing 29  Ont.,  21  (1897).] 

[' '  The  mere  fact  that  they  were  adapted  to  be  used  in  this  factory,  and 
that  they  were  necessary  to  carry  on  the  business  is  not  enough  of  itself  to 
impress  on  them  the  character  of  realty.  The  same  thing  is  true  of  the 
tools  used  by  hand  in  the  manufacture  there  carried  on. ' '  Hubbell  v.  East 
Cambridge  Bank,  132  Mass.,  447,  449  (1882).] 

[Machines  prepared  and  completely  finished  at  the  place  of  manufacture, 
ready  for  use  in  any  locality,  removable  without  injury,  show  no  adapta- 
tion to  make  fixtures.  Penn  Mutual  Ins.  Co.  v.  Semple,  38  N.  J.  Eq.,  575, 
585    (1884).] 

5  See  Potter  v.  Cromwell,  40  N.  Y.,  287  (1869);  Tifft  v.  Horton,  53 
N.  Y.,  382  (1873).  [See,  ante,  p.  *43.  Arnold  v.  Crowder,  81  111.,  56, 
58  (1876);  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57,  64  (1876);  Hope- 
well Mills  v.  Taunton  Bank,  150  Mass.,  519,  522  (1890)  ;  Eobertson  v. 
Corsett,  39  Mich.,  777,  782;  Davis  v.  Mugan,  56  Mo.  App.,  311,  316  (1893)  ; 
Keefer  v.  Merrill,  6  Up.  Can.  App.,  121  (1881)  ;  Temple  Co.  v.  Penn  Mut. 
Ins.  Co.,  69  N.  J.  Law,  36  (1903).] 

[A  corporation  formed  "to  conduct  a  general  building  and  wood-work- 
ing business,  to  buy  lands  and  to  erect  thereon  buildings  for  manufactur- 
ing purposes,  and  machinery  necessary  and  incident  thereto,"  and  which 
was  organized  for  fifty  years,  erected  a  building  and  placed  therein  ma- 
chinery adapted  to  the  purpose  for  which  incorporated.  Ileld,  to  show 
that  the  annexation  was  permanent.  Lee  v.  Hubschmidt  Bldg.  Co.,  55 
N.  J.  Eq.,  623,  626   (1897).] 

[Where  there  is  no  special  adaptation  of  machines  to  the  place  where 
used,  nor  any  preparation  of  the  place  to  receive  them,  but  were  con- 
structed after  fixed  patterns  for  all  purchasers,  mere  heavy  and  compli- 
cated tools,  movable  vtithout  detriment  to  the  building,  and  equally  suit- 
able elsewhere,  they  are  not  a  part  of  the  realty  covered  by  a  mortgage. 

440 


CHAP.  EX.]  GRANTOR    AND    GRANTEE,    ETC. 


^294 


more  beneficial,  and  are  attached  in  such  a  way  that  they  can 
be  removed  without  any  essential  injury  to  the  freehold  or  to 
the  articles  themselves,  they  still  remain  personal  property, 
and  do  not  pass  by  a  conveyance  or  mortgage  of  the  freehold.*^ 
And  it  has  accordingly  been  held  that  the  machinery  in  cotton 
and  woolen  mills,  or  other  similar  manufactories,  consisting  of 
looms,  yarn-reels,  speeders,  cards,  twisters,  spinning-frames, 
willows,  mule-beamers,  spreaders,  balling-machines,  spoolers, 
etc.,  secured  to  the  floor  by  cleats  nailed  to  the  floor  around 
the  feet,  or  by  screws  or  bolts  passing  through  holes  in  the  feet 
into  the  floor,  or  in  other  similar  ways,  so  attached  as  to  keep 
them  steady  in  their  positions,  and  capable  of  being  removed 
without  injury  to  themselves  or  the  building,  are  mere  chattels, 
not  passing  with  the  realtyJ 

Keeler  v.  Keeler,  31  N.  J.  Eq.,  181,  191  (1879).  Blancke  v.  Kogers,  26  N. 
J.  Eq.,  563,  568  (1875).  But  in  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57 
(1876),  the  court  did  not  seem  to  attach  any  weight  to  the  argument  that 
the  machines  were  entire  and  complete,  and  were  equally  well  adapted  to 
any  woolen  mill.] 

[Personal  property  does  not  become  realty  by  mere  use  in  connection 
with  land,  though  long  continued.  Keeler  v.  Keeler,  31  N.  J.  Eq.,  181, 
193   (1879).] 

6  See  Hill  v.  Wentworth,  28  Vt.,  429  (1856) ;  Fullam  v.  Stearns,  30  Vt., 
452  (1857)  ;  Bartlett  v.  Wood,  32  Vt.,  372  (1859)  ;  Sweetzer  v.  Jones,  35 
Vt.,  317  (1862);  also  the  authorities  cited  in  the  note  next  below.  [Long 
V.  Cockern,  128  111.,  29  (1889),  aff'g  29  111.  App.,  304  (1888);  McConnell 
V.  Blood,  123  Mass.,  47,  49  (1877)  ;  Maguire  v.  Park,  140  Mass.,  21  (1885)  ; 
Hubbell  V.  East  Cambridge  Bank,  132  Mass.,  447,  449  (1882);  Penn  Mut. 
Ins.  Co.  V.  Semplc,  38  N.  J.  Eq.,  575  (1884)  ;  Keeler  v.  Keeler,  31  N.  J. 
Eq.,  181,  191  (1879)  ;  Blancke  v.  Sogers,  26  N.  J.  Eq.,  563,  567  (1875)  ; 
Keve  V.  Paxton,  26  N.  J.  Eq.,  107,  109  (1875)  ;  Brown  v.  Roland,  92  Tex., 
54,  57  (1898);  Neufelder  v.  Third  Street  R'y,  23  Wash.,  470  (1900); 
Chase  v.  Tacoma  Box  Co.,  11  Wash.,  377  (1895);  Cherry  v.  Arthur,  5 
Wash.,  787,  788  (1893);  Washington  Nat.  Bank  v.  Smith,  15  Wash.,  160, 
168  (1896);  Schreiber  v.  Malcolm,  8  Gr.  Ch.,  433  (Ont.,  1860);  Sun  As- 
Burance  Co.  v.  Taylor,  9  Man.,  89,  101  (1803);  see,  also,  Taylor  v.  Wat- 
kins,  62  Ind.,  511   (1878);  Carpenter  v.  Walker,  140  Mass.,  416   (1886).] 

7  See  Swift  V.  Thompson,  9  Conn.,  63  (1831);  Gaylor  v.  Harding,  37 
Conn.,  508  (1871);  McKim  v.  Mason,  3  Md.  Ch.  Dec,  186  (1852);  Craves 
V.  Pierce,  53  Mo.,  429  (1873);  Tobias  v.  Francis,  3  Vt.,  425  (1830); 
Bturges  v.  Warren,  11  Vt.,  433  (1839);  Vandcrpool  v.  Van  Allen,  10  Barb., 
157  (1850);  Cresson  v.  Stout,  17  John.,  116  (1819);  Murdock  v.  Gifford, 
18  N.  Y.,  28   (1858);   Teaff  v.  Hewitt,  1   Ohio  St.,  511    (1853),  in  which 

441 


*295  THE  Lu\.W  OF  FIXTURES.  [CHAP.   IX. 

[*295]  *0n  the  otluT  liaiid  it  sooiiis  to  be  settled  in  England 
and  Ireland  that  articles  similarly  annexed  and  for  similar  pur- 
poses are  part  of  and  pass  with  the  realty.^     And  the  rule  last 

case,  however,  it  is  stated  (p.  535)  that  the  articles,  looms,  carding  ma- 
chines, etc.,  were  subject  to  removal  to  suit  convenience,  and  not  intended 
as  a  permanent  accession  to  the  freehold,  though  this  seems  a  deduction 
of  the  court  from  the  mode  of  annexation,  use,  etc.;   "Wade  v.  Johnston, 

25  Geo.,  331  (1S58).  See,  also.  Gale  v.  Ward,  14  Mass.,  352  (1817)  ;  Capen 
V.  Peckham,  35  Conn.,  88  (1866);  Waterfall  v.  Penistone,  6  Ell.  &  Bl.,  876, 
889  (1856);  Hellawell  v.  Eastwood,  6  Exch.,  295  (1851),  a  case  between 
landlord  and  tenant;  Parsons  v.  Hind,  14  W.  E.,  860  (1866);  Graves  v. 
Pierce,  53  Mo.,  423  (1873),  a  case  of  a  mechanics'  lien;  Hutchinson  v. 
Kay,  23  Beav.,  413  (1857),  where,  however,  the  looms  were  net  fixed,  but 
merely  steadied  by  having  their  four  iron  legs  set  into  four  iron  cylinders 
surmounted  by  iron  cups  dropped  into  holes  in  the  flag  pavement,  such  cups 
not  being  in  any  way  fastened  to  the  flooring,  nor  the  legs  fastened  into 
the  cups;  Walker  v.  Sherman,  20  Wend.,  636  (1839)  ;  Eogers  v.  Brokaw,  25 
N.  J.  Eq.,  496  (1875),  where  a  planer  and  matcher,  and  a  moulder  in 
a  sash  and  blind  factory,  weighing  respectively  about  3,600  lbs.  and  2  tons, 
resting  directly  on  the  floor,  their  position  being  changeable  as  convenience 
might  require,  one  of  them  fastened  to  the  floor  by  screws  passing  through 
the  feet,  but  easily  unscrewed  and  removed,  and  not  intended  to  be  made 
permanent  annexations  to  the  factory,  were  held,  not  to  pass  by  a  mortgage 
of  the  realty. 

[The  following  eases  hold  that  machines  attached  to  keep  them  steady, 
are  not  a  part  of  the  realty:  Hubbell  v.  East  Cambridge  Bank,  132  Mass., 
447  (1882);  Wheeler  v.  Bedell,  40  Mich.,  693,  695  (1879);  Knickerbocker 
Trust  Co.  V.  Penn  Cordage  Co.,  62  N.  J.  Eq.,  624   (1901);  Case  v.  Arnett, 

26  N.  J.  Eq.,  459,  461  (1875)  ;  Campbell  v.  John  W.  Taylor  Co.,  62  N.  J, 
Eq.,  307  (1901);  Crane  Iron  Works  v.  Wilkes,  64  N.  J.  Law,  193,  194 
(1899);  Wells  v.  Maples,  22  Supr.  Ct.  (15  Hun),  90,  92  (N.  Y.,  1878); 
Hart  V.  Sheldon,  41  Supr.  Ct.  (34  Hun),  38,  46  (N.  Y.,  1884);  Case  Mfg. 
Co.  v.  Garven,  45  Ohio  St.,  289  (1887),  reversing  Garven  v.  Hogue,  14 
Wkly.  Cin.  Law  Bui.,  175  (C.  C,  1885);  Case  v.  L'Oeble,  84  Fed.,  582, 
585  (U.  S.  C.  C,  Pa.,  1897)  ;  Cherry  v.  Arthur,  5  Wash.,  787,  788  (1893)  ; 
Keefer  v.  Merrill,  6  Up.  Can.  App.,  121  (1881);  Carscallen  v.  Moodie,  15 
Up.  Can.  Q.  B.,  304;  see,  also,  Atlantic  Trust  Co.  v.  Atlantic  City  Laun- 
dry Co.,  64  N.  J.  Eq.,  140,  146  (1902);  Price  v.  Jenks,  14  Phila.,  228 
(1880)  ;  Gooderham  v.  Dcnholm,  18  Up.  Can.  Q.  B.,  203  (1859)  ;  Dowall  v, 
Miln   (1874),  1  Sess.  Cas.,  4th  Ser.,  1180.] 

iLongbottom  v.  Berry,  L.  K.,  5  Q.  B.,  123  (1869)  ;  s.  c,  39  L.  J.,  Q.  B., 
37;  10  B.  &  S.,  584;  22  L.  T.  (N.  S.),  385.  The  machinery  in  this  case  was 
such  as  was  necessary  for  the  purposes  of  manufacturing  woolen,  and  was 
in  general  fixed  to  the  floor,  roof,  or  side  walls  in  "a  quasi  permanent 
manner,"  viz.:  by  screws  or  bolts,  or  bolts  with  screws  at  the  top  thereof, 
fastened    in    holes    in    the    floor    by    pouring    melted    lead    around    them, 

442 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *295 

mentioned  has  also  received  considerable  support  in  the  United 
States.2 

or  by  pegs  driven  througli  Loles  in  tlie  framework  of  the  machines  into 
holes  in  the  floor;  and  without  being  fixed  in  such  a  manner  in  order  to 
keep  it  steady  and  from  moving,  it  could  not  have  been  effectually  used; 
Holland  v.  Hodgson,  L.  R.,  7  C.  P.,  328  (1872);  Be  Dawson,  Ir.  L.  R., 
2  Eq.,  218  (1868) ;  s.  c,  16  W.  R.,  424;  Barnett  v.  Lucas,  5  Jr.  Com.  Law, 
140,  145  (1870).  See,  also,  Boyd  v.  Shorrock,  L.  R.,  5  Eq.,  72  (1867); 
s.  c,  37  L.  J.,  Ch.,  144;  17  L.  T.  (N.  S.),  197;  16  W.  R.,  102;  CUmie  v. 
Wood,  L.  R.,  3  Exch.,  257;  S.  C,  37  L.  J.  Exch,  158;  18  L.  T.  (N.  S.), 
609;  L.  R.,  4  Exch.,  328  (1869);  38  L.  J.,  Exch.,  223;  20  L.  T.  (N.  S.), 
1012,  where  the  jury  finding  that  the  articles  were  of  the  kind  called 
trade  fixtures,  it  was  regarded  as  immaterial  that  they  found  also  that 
they  were  affixed  by  the  mortgagor  for  their  better  use  and  not  to  improve 
the  inheritance,  and  that  they  could  be  removed  without  any  appreciable 
damage  to  the  freehold.  It  was  observed  by  Willes,  J.,  in  this  case  (38 
L.  J.,  Exch.,  223),  that  "the  finding  of  the  jury  does  not  say  that  they 
■were  annexed  for  their  more  convenient  use  as  chattels.  That  would  have 
been  Hellawell  v.  Eastwood  [6  Exch.,  295],  over  again;  but  the  finding 
would  plainly  have  been  contrary  to  the  fact ; ' '  and,  it  might  have  been 
added,  contradictory  to  the  preceding  word  fixtures;  Wiltshear  v.  Cottrell, 
1  Ell.  &  Bl.,  674  (1853)  ;  s.  c,  22  L.  J.,  Q.  B.,  177;  17  Jur.,  758;  18  Eng. 
L.  &  Eq.,  142,  where  a  threshing  machine,  fixed  by  bolts  and  screws,  was 
held  to  pass  either  as  a  part  of  the  land  or  a  fixture. 

See,  however,  Parsons  v.  Hind,  14  W.  R.,  860  (1866),  an  hydraulic  press 
in  a  factory,  fixed  by  brick  and  mortared  to  the  floor,  but  not  essential  to 
the  factory;  this  case  was,  however,  decided  mainly  on  the  question  of 
intention,  though  Hellawell  v.  Eastwood  was  cited  approvingly.  See,  also, 
the  Irish  case  of  The  Patent  Peat  Co.,  17  L.  T.  (N.  S.),  69  (1867),  a  drill- 
ing-machine, bolted  to  a  bench  by  four  light  bolts,  and  the  bench  secured  by 
four  spikes  to  keep  it  steady,  held  not  to  be  a  fixture  passing  by  a  demise 
by   way   of   mortgage. 

[See  the  following  cases  holding  that  machines  pass  as  a  part  of  tho 
realty:  Crawford  v.  Findlay,  18  Gr.  Ch.,  51,  54  (Ont.,  1871);  McDonald 
V.  Weeks,  8  Gr.  Ch.,  297  (Ont.,  1860)  ;  Sun  Assurance  Co.  v.  Taylor,  9  Man., 
89,  97  (1893);  Adamson  v.  Mcllvaiue,  3  Man.  Law,  29  (1885);  Cross  v. 
Barnes  (1877),  46  L.  .1.,  Q.  B.,  479,  480;  see,  also,  Haggert  v.  Brampton, 
28  Can.,  174,  LSI  (1897);  Reynolds  v.  Ashby  [1903],  1  K.  B.,  87;  Ark- 
wright  v.  Billings  (1819),  Fac.  Dec,  Scot.;  M 'Ley  v.  Howie  (1902),  40 
Scot.  Law  Rep.,  170,  looms  bolted  to  an  iron  sole-plate  resting  by  its  own 
weight,  the  upper  part  of  the  looms  being  tied  by  substantial  iron  stays 
to  the  roof.] 

2  See  Parsons  v.  Copeland,  38  Me.,  537  (1854);  Symonds  v.  Harris,  51 
Me.,  14  (1862);  Trull  v.  Fuller,  28  Me.,  545  (1848);  Christian  v.  Drippa, 
28  Penn.  St.,  271  (1857);  Deal  v.  Palmer,  72  N.  C,  582  (1875),  where  tho 
carding-machine   was    fastened    only   by    its   weight;    Baker    v.    Davis,    19 

443 


*296  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

[*296]  *In  Longbottom  v.  Beriy,  Ilannen,  J.,  in  delivering 
the  opinion  of  the  conrt,  referring  to  the  manner  of  the  fixing, 
said:  "This  fixing  was  clearly  necessary,  for  they  conld  not 
otherwise  be  efiiectnally  used ;  and  for  the  same  reason  the  fixing 
was  obviously  not  occasional,  but  permanent.     It  is  no  doubt 

N.  H.,  325  (1849);  Harlan  v.  Harlan,  15  Penn.  St.,  507  (1850);  s.  C, 
20  Id.,  303  (1853).  [Hopewell  Mills  v.  Taunton  Bank,  150  Mass.,  519 
(1890)  ;  Langdon  v.  Buchanan,  62  N.  H.,  657,  660  (1883)  ;  Helm  v.  Gilroy, 
20  Ore.,  517,  522   (1891);  see  Ex  parte  Makepeace,  31  N.  C,  91    (1848).] 

A  cotton-gin  placed  by  the  owner  of  the  land  in  a  gin-house,  but  not 
fastened  to  the  floor  in  any  manner,  a  piece  of  plank  being  nailed  to  the 
floor  and  the  front  ledge  of  the  gin  resting  against  this  plank  to  prevent  its 
moving  when  the  band  is  applied  and  the  gin  at  work,  such  being  the  usual 
way  of  securing  a  gin  in  its  place,  is  held  to  be  a  fixture  passing  with  the 
land  as  between  vendor  and  vendee  or  mortgagor  and  mortgagee.  Latham 
V.  Blakely,  70  N.  C,  368  (1874)  ;  Bond  v.  Coke,  71  N.  C,  97  (1874)  ;  Brat- 
ton  V.  Clawson,  2  Strobh.,  478  (1848);  s.  C,  3  Strobh.,  127;  Fairis  v. 
Walker,  1  Bail.,  540  (1830);  Kichardson  v.  Borden,  42  Miss.,  71  (1868); 
Tate  V.  Blackburne,  48  Miss.,  1  (1873),  so  held  in  this  case  also  as  to  a 
cotton-press  fixed  by  being  let  into  notches  in  the  sills  and  secured  by 
wedges.     See,  also,  McDaniel  v.  Moody,  3  Stew.   (Ala.),  314   (1831). 

[A  smutter  held  in  position  in  a  mill  by  braces  from  the  joists,  and 
connected  by  belting  with  shafting,  which  is  essential  and  necessary  to  the 
mill,  but  which  could  be  removed  without  injury  to  the  mill,  passes  under 
an  execution-sale  of  the  land,  as  against  one  who  allowed  the  mill-owner 
to  so  attach  it.     Stillman  v.  Flenniken,  58  Iowa,  450,  454    (1882).] 

[The  following  articles  were  held  part  of  the  realty  as  between  a  mort- 
gagee of  the  land,  and  a  purchaser  of  the  machinery:  Looms,  fastened  to 
the  floor  by  screws;  carders,  weighing  eighteen  hundred  pounds  kept  in 
position  by  their  own  weight;  spinning-jacks  held  by  cleats  nailed  to  the 
floor,  and  by  iron  rods  to  the  ceiling;  shafting  and  belting  connecting  the 
machines.     Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57   (1876).] 

[A  mortgage  covers,  as  against  a  chattel  mortgagee,  two  looms  weighing 
fifteen  hundred  pounds  each  resting  upon  the  flooring  by  their  weight 
alone,  and  connected  by  belting  Avith  shaft,  being  necessary  for  a  woolen 
mill.     Cavis  v.  Beckford,  62  N.  H.,   229    (1882).] 

However,  in  Cole  v.  Eoach,  37  Tex.,  413  (1872),  and  Hancock  v.  Jordan, 
7  Ala.,  448  (1845),  contrary  decisions  were  made,  the  court,  however,  in 
the  last  named  case,  laying  some  stress  upon  the  fact  that  the  conveyance 
was  not  of  the  land  as  a  cotton  plantation ;  and  indeed,  there  seems  no 
more  reason  for  holding  these  machines,  when  kept  in  place  simply  by  their 
weight,  to  be  fixtures,  than  any  other  articles  totally  disconnected  with  the 
realty,  as  there  seems  to  have  been  the  ease.  See,  also,  Farrar  v.  Stack- 
pole,  and  other  cases  cited  ante  p.  *17,  et  seq.,  and  notes;  Pierce  v.  George, 
108  Mass.,  78    (1871). 

444 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *297 

said  in  this  case  that  the  object  of  fixing  was  to  insure  steadiness 
and  keep  the  machines  in  their  places  when  worked;  but  the 
*same  thing  could  probably  be  said  of  most  trade  fix-   [*297] 
tures,  from  a  steam-engine  downwards,  and  if  the  effect  of  this 
fixing  is  to  cause  the  whole  set  of  machines  to  be  effectually 
used  in  the  manufacture  of  wool  and  cloth,  it  seems  very  difficult 
to  avoid  coming  to  the  conclusion  that  a  necessary  consequence 
is  to  cause  the  mill  to  be  put  to  a  more  profitable  use  as  a  wool- 
mill  than  it  otherwise  would  be.     It  is  also  equally  difficult  to 
conceive  that  a  machine  which  at  all  times  requires  to  be  firmly 
fixed  to  the  freehold  for  the  purpose  of  being  worked,  could 
truly  be  said  never  to  lose  its  character  as  a  movable  chattel." 
With  reference  to  the  rule  above  stated,  that  such  articles  of 
machinery  as  are  attached  to  the  building  merely  to  keep  them 
steady  in  their  places,  so  that  their  use  as  chattels  may  be  more 
beneficial,  etc.,  are  mere  chattels,  it  is  to  be  observed  that  the 
use  of  the  words  "as  chattels,"  seems  to   assume  the  whole 
point  in  controversy.^     The  rule  itself,  however,  seems  to  have 
been  adopted  by  the  weight  of  authority  in  this  country,  though 
as  has  been  seen,  in  England  and  Ireland  it  is  otherwise.    Prop- 
erly the  question  seems  in  each  case  to  be  one  of  mixed  law 
and  fact,  determinable  in  accordance  with  the  rule  already  laid 
down,  as  seems  to  have  been  done  in  some  of  the  cases  cited.^ 
If,  however,  the  article  has  been  attached  merely  for  a  tempo- 
rary purpose  with  the  intention  of  removing  it  again,  it  does  not 
properly  become  an  irremovable  accession  to  the  land.^     It  is 

1  See  Holland  v.  Hodgson,  quoted  from,  in  note  below. 

2  See  Teaff  v,  Hewitt;  Rogers  v.  Brokaw,  cited  (ante).  See,  also, 
Walmsley  v.  Milne,  7  C.  B.  (N.  S.),  115  (1859);  Holland  v.  Hodgson, 
L.  E.,  7  C.  P.,  328  (1872);  Farrar  v.  Chauffetete,  5  Den.,  527  (1848).  See 
next  note   [and,  ante,  p.   *24.] 

8  See  Crane  v.  Brigham,  11  N.  J.  Eq.,  29,  35  (1855);  Randolph  v. 
Gwynnc,  7  N.  J.  Eq.,  88  (1848)  ;  "Rogers  v.  Brokaw,  25  N.  J.  Eq.,  496 
(1875)  ;   Kelly  v.  Austin,  46  111.,  156    (1867). 

In  Kelly  V.  Austin,  A.  executed  a  mortgage  upon  certain  premises  to  B., 
and  afterwards,  together  with  his  partner  in  the  trade  of  house  joiners, 
with  the  labor,  materials  and  moans  of  the  firm,  erected  for  trade  pur- 
poses a  carpenter  shop  on  the  premises.  It  was  slightly  built  of  rough 
materials,  and  placed  upon  blocks  resting  on  boards  laid  on  the  surface  of 
the  ground,  and  in  no  manner  let  into  the  ground,  and  seemed  to  be  de- 
signed for  no  other  than  a  temporary  use;  held,  that  it  did  not  pass  to  the 

445 


•297  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

purchaser  at  a  sale  of  the  premises  under  the  mortgage.     See,  also,  Penny- 
backer  V.  McDougal,  48  Cal.,  lOO  (1874).     [See,  ante,  p.  *69.] 

In  Eaniloljih  v.  Gwynne  (which  seems  rather  a  strong  application  of  the 
rule),  the  facts  were  as  follows:  In  1839  A.  bought  of  B.  a  mill-seat  and 
a  saw-mill  thereon,  and  gave  back  a  mortgage  for  the  unpaid  purchase 
money.  He  afterwards  converted  the  premises  into  paper-mills,  putting 
in  a  new  water-wheel,  the  mill  being  complete  as  a  mill  to  be  driven  by  the 
water  power  on  the  premises.  Several  seasons  previous  to  1845  being  so 
unusually  dry  that  the  water  was  insufficient  to  drive  the  mill  at  all  times, 
A.  placed  a  steam-engine  in  the  basement  fastened  on  a  stone  and  brick 
foundation  by  bolts  and  nuts,  and  applied  the  power  directly  to  the  driv- 
ing-wheel, so  that  the  machinery  moved  precisely  as  if  the  wheel  was  turned 
by  water.  In  1S47  and  1848  there  being  no  deficiency  of  water,  in  the 
spring  of  1848,  A.  contracted  to  sell  the  engine  and  was  about  removing 
it  when  enjoined;  Held,  that  the  mill  being  complete  without  it,  and, 
except  in  dry  seasons,  it  being  useless,  and  it  being  removable  without 
injury  to  the  mill,  it  did  not  become  subject  to  the  mortgage. 

In  Holland  v.  Hodgson,  L.  E.,  7  C.  P.,  328,  337  (1872),  (also  quoted  from 
ante,  p.  *30),  Blackburn,  J.,  referring  to  this  subject  said:  "As  we  have 
already  observed,  trade  or  tenant  fixtures  might  in  one  sense  be  said  to  be 
fixed  'merely  for  a  temporary  purpose';  but  we  cannot  suppose  that  the 
Court  of  Exchequer  m.eant  to  decide  that  they  were  not  part  of  the  land, 
though  liable  to  be  severed  by  the  tenant.  The  words  'merely  for  a  tem- 
porary purpose'  must  be  understood  as  applying  to  such  a  case  as  we  have 
supposed,  of  the  anchor  dropped  for  the  temporary  purpose  of  mooring  the 
ship,  or  the  instance  immediately  afterwards  given  by  Parke,  B.,  of  the 
carpet  tacked  to  the  floor  for  the  purpose  of  keeping  it  stretched  whilst 
it  was  there  used,  and  not  to  a  case  such  as  that  of  a  tenant  who,  for 
example,  affixes  a  shop  counter  for  the  purpose  (in  one  sense  temporary) 
of  more  effectually  enjoying  the  shop  whilst  he  continues  to  sell  his 
wares  there.  Subject  to  this  observation,  we  think  that  the  passage  in  the 
judgment  in  Hellawell  v.  Eastwood  [6  Exch.,  295  (1851)],  does  state  the 
true  principles,  though  it  may  be  questioned  if  they  were  in  that  case  cor- 
rectly applied  to  the  facts.  The  court  in  their  judgment  determine  what 
they  have  just  declared  to  be  a  question  of  fact,  thus:  'The  object  and 
purpose  of  the  connection  was  not  to  improve  the  inheritance,  but  merely 
to  render  the  machines  steadier  and  more  capable  of  convenient  use  as 
chattels.'  "  See  Hellawell  v.  Eastwood,  commented  upon  also  in  Mather 
V,  Fraser,  2  Kay  &  J.,  536  (1856)  ;  Regina  v.  Lee,  L.  E.,  1  Q.  B.,  244,  254 
(1866)  ;  Longbottom  v.  Berry,  L.  E.,  5  Q.  B.,  123,  137  (1869)  ;  Barnett  v. 
Lucas,  5  Ir.   Com.  Law,  145    (1870). 

[A  small  playhouse,  upon  no  foundation,  built  of  pieces  of  board  picked 
up  by  the  children  of  the  neighborhood,  and  nailed  together  and  to  the 
fence,  is  not  part  of  the  realty.  Kirchman  v.  Lapp,  19  N.  Y.  Supp., 
831,  832   (1892).] 

[A  weather-vane,  with  the  owner's  name  upon  it  for  advertising  pur- 

446 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *298 

*also  clear  that  mere  articles  of  furniture  movable  in  [*298] 
their  nature,  though  temporarily  fastened  while  in  use,  do  not 
become  a  part  of  the  realty  nor  pass  therewith,  e.  g.,  hangings, 
pier-glasses,  chimney-glasses,  book-cases,  carpets,  curtains  and 
the  like.i 

*It  is,  perhaps,  settled  by  the  weight  of  American  [*299] 
authority  (though  the  reason  of  the  thing  seems  to  be  the  other 
way)  that  the  so-called  gas  fixtures,  consisting  of  gas  chande- 
liers and  burners,  screwed  upon  the  gas  pipe  in  the  usual  way 

poses,  does  not  pass  with  the  realty.  Harmony  Bldg.  Ass'n  v.  Berger,  99 
Pa.  St.,  320,  324  (1882).] 

[Chairs  screwed  to  the  floor  of  a  hippodrome,  the  Town  Council  requir- 
ing that  they  be  fastened,  are  not  part  of  the  realty.  Lyon  v.  London  C  'y 
Bank  [1903],  2  K.  B.,  135.] 

1  See  note  (3)  ante  p.  *297;  also  ante  p.  *222,  and  notes;  Shaw  v.  Lenke, 

1  Daly  (N.  Y.),  487  (1865);  Walker  v.  Sherman,  20  Wend.,  646  (1839), 
per  Cowen,  J.;  Parsons  v.  Hind,  14  W.  E.,  860  (1866),  arguendo,  the  clock 
in  court.  [McKeage  v.  Hanover  Ins.  Co.,  81  N.  Y.,  38,  40  (1880),  aflf'g 
23  Supr.  Ct.  (16  Hun),  239  (1878);  Durkee  v.  Powell,  75  App.  Div.,  176 
(N.  Y.,  1902)  ;  Cosgrove  v.  Troeseher,  62  App.  Div.,  123,  125  (N.  Y., 
1901);  Manning  v.  Ogden,  77  Supr.  Ct.  (70  Hun),  399,  400  (N.  Y.,  1893); 
Hall  V.  Law  Trust  Soc,  22  Wash.,  305  (1900);  Nisbet  v.  Mitchell-Innes 
(1880),  17  Scot.  Law  Kep.,  438,  440;  see,  also,  Oliver  v.  Lansing,  59  Neb., 
219,  228   (1899);  Lea  v.  Shakespeare,  10  Mont.  Co.   (Pa.),  171   (1894).] 

In  Beck  v.  Eebow,  1  P.  Wms.,  94  (1706),  on  a  bill  against  the  executor 
of  covenantor  for  the  specific  performance  of  articles  containing  cove- 
nants to  grant  to  plaintiff  "all  the  pictures  upon  the  stair-case,  over  the 
doors  and  chimney-pieces,  and  all  things  fixed  to  the  freehold  of  the  mes- 
suage," held,  that  pier-glasses,  hangings  and  chimney-glasses  fixed  with 
nails  and  screws  to  the  freehold  with  no  wainscot  under  them,  were  only 
matters  of  ornament  and  furniture,  and  not  to  be  taken  as  part  of  the 
house  or  freehold.     See,  also.  Birch  v.  Dawson,  6  C.  &  P.,  658  (1834)  ;  s.  C, 

2  Ad.  &  E.,  37   (1834). 

{A  mirror,  removable  without  injury,  matching  in  style  and  finish  other 
•woodwork  in  the  room,  does  not  pass  with  the  realty,  although  leaving  an 
unpapered  wall  back  of  it.  Loan  v.  Gregg,  55  Mo.  App.,  581,  583  (1893); 
Cranston  v.  Beck,  56  Atl.,  121  (N.  J.,  1903).  In  the  latter  case  it  was 
said  that  the  character  of  such  mirrors  was  not  changed  by  the  fact  that, 
while  title  to  them  was  in  an  executor,  he  conveyed  the  real  estate,  it  not 
being  shown  that  the  executor  had  any  estate  in  the  land.  See,  however. 
Spinney  v,  Barne,  43  111.  App.,  585,  586  (1892),  where  a  console  mirror 
firmly  attached  to  the  chimney  breast,  of  the  same  finish  as  other  wood- 
work in  the  room,  and  which  could  not  be  removed  without  injury,  passed 
to  the  vendee  of  the  realty.  Smith  v.  Macluro  (1884),  32  W.  R.,  459, 
460.] 

447 


*290  THE  LAW  OF  FIXTURES.  [CIIAP.   IX. 

are  not  lixturos,  but  mere  articles  of  furniture,  and  hence  do 
not  pass  upon  a  conveyance  of  the  premises  p  though  as  to  gas- 

-  Montaijuo  v.  Dent,  10  Eich.  Law,  135  (1856),  so  held  as  between  the 
purchaser  at  a  mortgage  sale  and  an  execution  creditor;  Vaughen  v.  Halde- 
uian,  33  Penn.  St.,  522  (1859);  Rogers  v.  Crow,  40  Mo.,  91  (1867);  Shaw 
V.  Lenkc,  1  Daly  (N.  Y.),  487  (1865).  See,  also,  Lawrence  v.  Kemp,  1 
Duer,  363  (1852);  Steuart  v.  Douglas  (1870),  Brown  Fixt.,  Appendix  A. 
[Fratt  V.  Whittier,  58  Cal.,  126,  133  (1881)  ;  L'Hote  v.  Fulham,  51  La.  Ann., 
780,  788  (1899)  ;  Towne  v.  Fiske,  127  Mass.,  125,  131  (1879)  ;  Capehart 
V.  Foster,  61  Minn.,  132,  133  (1895),  where  it  is  said  that  "while  this 
doctrine  is  rather  doubtful  in  principle,  it  is  too  well  established  to  be  now 
overturned."  McKeage  v.  Hanover  Ins.  Co.,  81  N.  Y.,  38,  40  (1880), 
aff'g  23  Supr.  Ct.  (16  Hun),  239  (1878);  Cosgrove  v.  Troescher,  62  App. 
Div.,  123,  125  (N.  Y.,  1901);  Manning  v.  Ogden,  77  Supr.  Ct.  (70  Hun), 
399,  400  (N.  Y.,  1893);  Kirchman  v.  Lapp.,  19  N.  Y.  Supp.,  831,  832 
(1892)  ;  Jarechi  v.  Philharmonic  Soc,  79  Pa.  St.,  403,  405  (1875)  ;  Wilson 
V.  Steel,  13  Phila.,  153,  154  (1879);  Lea  v.  Shakespeare,  10  Mont.  Co.- 
(Pa.),  171  (1894} ;  Hall  v.  Law  Trust  Co.,  22  Wash.,  305  (1900) ;  see,  also, 
Iden  V.  Sommers,  18  N.  Y.  Supp.,  189  (1892);  Daniels  v.  Detwiler,  14 
Mont.  Co.  (Pa.),  58  (1898);  Condit  v.  Goodwin,  89  N.  Y.  Supp.,  827 
(1904).] 

Contra,  Johnson  v.  Wiseman,  4  Met.  (Ky.),  357  (1863);  Sewell  v, 
Angerstein,  18  L.  T.  (N.  S.),  300  (1868),  at  nisi  prius  per  Willes,  J.,  the 
judges  of  the  court  of  C.  P.  agreeing  with  him;  Ex  parte  Acton,  4  L.  T. 
(X.  S.),  261  (1861);  Ex  parte  Wilson,  2  Mont.  &  Ayr.,  61  (1835).  See, 
also,  Ex  parte  Morrow,  1  Lowell's  Dec,  386  (1869) ;  s.  c,  2  N.  B.  R.  (2d 
ed.),  665.  [Berliner  v.  Piqua  Club,  66  N.  Y.  Supp.,  791  (1900);  Stack  v. 
Eaton,  4  Ont.  Law,  335;  Security  T.  Co.  v.  Temple  Co.,  58  Atl.,  865  (N,  J. 
Ch.,  1904);  Cunningham  v.  Seaboard  R.  Co.,  58  Atl.,  819  (N.  J.  Ch., 
1904).] 

In  rendering  his  judgment  in  Sewell  v.  Angerstein,  Willes,  J.,  said: 
"The  gaseliers  are  part  of  the  gas  pipes,  and  to  use  a  legal  expression,  they 
take  their  nature  and  are  included  in  the  fixtures  which  go  with  the  house 
under  the  lease.  They  are  as  much  a  part  of  the  gas  pipes  as  the  mill- 
stones are  part  of  the  mill.  Although  the  gaseliers  may  be  unscrewed  and 
taken  off  without  injuring  the  freehold,  they  are  necessary  to  the  enjoy- 
ment of  the  gas  pipes  which  are  of  no  practical  use  when  separated  from 
them;  *  »  *  They  form  part  of  the  freehold  and  were  a  part  of  the 
thing  let  just  as  much  as  a  pump-handle  is  a  part  of  the  pump ;  the  handle 
may  no  doubt  be  removed  without  injury  to  the  pump,  but  then  the  pump 
would  be  of  no  use  without  the  handle."  [Smith  v.  Maclure  (1884),  32 
W.  R.,  459,  460.] 

[Gas  lustres  and  brackets  are  not  fixtures.  Nisbet  v.  Mitchell-Innes 
(1880),   17   Scot.   Law  Rep.,  438.] 

[The  fact  that  a  chandelier  is  exceptionally  large  is  immaterial.  New 
York  Life  Ins.  Co.  v.  Allison,  107  Fed.,  179,  183  (U,  S.  C.  C.  A.,  N.  Y., 
1901).]  443 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *300 

fittings,  or  the  pipes  upon  which  the  fixtures  are  screwed  the 
rule  is  otherwise.^ 

*Though  there  are  some  decisions  to  the  contrary ,4  it  [*300] 
seems  very  clear  that  stoves  set  up  in  the  way  they  usually  are 
at  the  present  day,  are  mere  furniture  and  do  not  pass  by  a 
conveyance  of  the  house  wherein  they  are.^     Other  illustrations 

[Eenting  the  property  to  a  tenant  with  the  gas  fixtures  does  not  alone 
indicate  that  the  owner  intended  to  alter  their  character.  Penn  Ins.  Co.  v. 
Thackara,  15  Phila.,  264,  265  (1881),  aff'd  13  Eep.,  731  (Pa.,  1882).] 

[Gas  fixtures  are  not  covered  by  a  policy  of  insurance  upon  a  building. 
Thurston  v.  Union  Ins.  Co.,  17  Fed.,  127,  129   (U.  S.  C.  C,  N.  H.,  1883).] 

[Hall  lamps  attached  in  the  usual  way  of  gas-fixtures,  do  not  pass  under 
a  mortgage  as  part  of  the  realty.  Chapman  v.  Union  Mut.  Ins.  Co.,  4  111. 
App.,  29,  33  (1879).  But  in  Smith  v.  Maclure  (1884),  32  W.  K.,  459,  460, 
a  table  lamp  screwed  to  an  india-rubber  tube  fixed  to  the  floor,  was  held 
to  be  a  part  of  the  realty.] 

[Electric-light  fixtures  are  not  a  part  of  the  realty.  Canning  v.  Owen,  22 
K.  I.,  624,  631  (1901).  Dynamos  and  engines  with  their  connections  for 
lighting  a  theater,  are  not  fixtures,  where  the  building  was  prepared  to  be 
lighted  by  gas,  and  the  electric  lighting  system  was  introduced  for  tem- 
porary economy.  New  York  Life  Ins.  Co.  v.  Allison,  107  Fed.,  179,  183 
(U.  S.  C.  C.  A.,  N.  Y.,   1901).] 

3Ackroyd  v.  Mitchell,  3  L.  T.  (N.  S.),  236  (1860);  Ex  parte  Acton,  4 
L.  T.  (n!  S.),  261  (1861);  Ex  parte  Wilson,  2  Mont.  &  Ayr.,  61  (1835). 
[Smith  V.  Maclure  (1884),  32  W.  E.,  459,  460;  see  Atkinson  v.  Noad,  14 
Low.  Can.,  159  (1863).] 

Gasometers  and  apparatus  for  generating  gas  would,  it  seems,  also  pass 
with  the  inheritance  to  the  heir  or  grantee  as  fixtures.  Hays  v.  Doane,  11 
N.  J.  Eq.,  84,  96   (1855). 

[By  analogy,  the  wiring  of  an  electric  lighting  system  would  be  a  part 
of  the  realty,  though  the  chandeliers  and  their  appurtenances  would  not  be. 
New  York  Life  Ins.  Co.  v,  Allison,  107  Fed.,  179,  183  (U.  S,  C.  C.  A.,  N.  Y., 

1901).] 

4Goddard  v.  Chase,  7  Mass.,  432  (1811).  Franklin  stoves  fixed  in  the 
fire-places  of  a  house  in  the  usual  manner  (not,  however,  stated  in  the 
report),  held  to  pass  to  the  vendee  on  a  sale  of  the  house,  in  Smith  v. 
Heiskell,  1  Cranch.  C.  C,  99  (1802).  See,  also,  Folsom  v.  Moore,  19  Me., 
252  (1841). 

So,  as  to  a  stove  standing  in  its  place,  the  fire-place  having  been  closed 
up  with  brick  and  the  pipe  going  through  a  thimble.  Blethen  v.  Towle,  40 
Me.,  310  (1855) ;  in  this  case  it  was  also  held  that  stoves  taken  down  and 
stowed  away  for  the  summer  did  not  pass.  See,  also,  Tuttle  v.  Eobinson,  33 
N,  H.,  104  (1856).  The  stoves  held  to  pass  in  these  cases  were  probably 
more  or  less  securely  annexed  to  the  house. 

B  Williams  V.  Bailey,  Sup.  Ct.  Mass.,  Essex,  April  1801,  3  Dane's  Abr., 
29  449 


•300  THE  LAW  OF  FIXTURES,  |  CHAP.   IX. 

will  be  found  in  the  note  below.^  Gas  fixtures  or  other  fixed  fur- 
niture may^  however,  when  such  is  the  intention  of  the  owner 

152,  §25;  Freeland  v.  Southworth,  24  Wend.,  191  (1840).  See,  also, 
Tuttle  V.  Eobinson,  33  N.  H.,  104,  107  (1856).  [Cosgrove  v.  Troescher,  62 
App.  Piv.,  123,  125   (N.  Y.,  1901).] 

[Although  connected  by  pipes  with  a  hot  water  boiler;  and  the  fact 
that  there  were  twenty-four  stoves — one  for  each  apartment  in  a  building, 
although  it  gives  a  suggestion  of  permanence,  will  not  avail  as  against  a 
conditional  seller,  in  favor  of  a  mortgagee  of  the  building.  Jennings  v. 
Vahey,  183  Mass.,  47    (1903).] 

[Portable  furnaces  do  not  pass  as  a  part  of  the  realty.  Towne  v.  Fiske, 
127  Mass.,  125,  131  (1879)  ;  Kahway  Sav.  Inst.  v.  Irving  Baptist  Ch.,  36 
N.  J.  Eq.,  61  (1882);  Duffus  v.  Howard  Furnace  Co.,  8  App.  Div.,  567 
(1896),  reversing  37  N.  Y.  Supp.,  19  (1895);  see,  also,  Elston  v.  Jury,  9 
Mont.  Co.    (Pa.),  92    (1892).] 

[Likewise,  as  to  ranges  and  heaters,  although  connected  with  water- 
pipes.  Kerby  v.  Clapp,  15  App.  Div.,  37,  38  (N.  Y.,  1897);  Burke  v. 
Weiss,  1  Luz.  Leg.  Eeg.  E.,  310.] 

[Likewise,  as  to  a  Baltimore  heater,  being  a  stove  so  placed  in  the  chim- 
ney as  to  heat  one  or  more  rooms  above  it.  Harmony  Bldg.  Ass'n  v.  Ber- 
ger,  99  Pa.  St.,  320,  324  (1882).] 

[The  fact  that  a  stove  is  placed  in  a  pit  made  to  receive  a  stove  will 
not  make  it  a  fixture  any  more  than  a  bedstead  will  be  made  a  fixture  by 
being  placed  in  an  alcove  made  to  receive  a  bedstead.  Eahway  Sav.  Inst.  v. 
Irving  Baptist  Ch.,  36  N.  J.  Eq.,  61,  65  (1882).] 

[A  mortgage  does  not  cover  radiators  standing  upon  the  floor,  and 
screwed  to  steam-pipes.  National  Bank  v.  North,  160  Pa.  St.,  303  (1894)  ; 
see,  also,  Mott  Iron  Works  v.  Middle  State  Co.,  17  App.,  D.  C,  584,  593 
(1901).] 

[Grates  do  not  pass  as  a  part  of  the  realty.  Nisbet  v.  Mitchell-Innes 
(1880),  17  Scot.  Law  Eep.,  438.] 

•5  A  cupboard  fitted  into  a  recess  and  fastened  there  by  nails  or  screws, 
held,  not  to  pass  with  the  realty,  in  Blethen  v.  Towle,  40  Me.,  310  (1855). 

But  where  in  the  erection  of  a  church  a  recess  was  left  to  receive  the 
organ  which  was  required  to  complete  the  architectural  design  and  finish 
of  the  building,  the  organ  being  fastened  to  the  platform  built  to  receive 
it  by  nails  driven  through  the  outer  case  into  the  floor,  and  the  wall  in  the 
rear  of  the  organ  being  in  a  rough  and  unfinished  state  and  pretty  much 
without  ceiling  or  finish,  it  was  held  that  it  was  to  be  considered  as  an- 
nexed to  the  freehold  and  passed  by  a  sale  of  the  realty.  Eogers  v.  Crow, 
40  Mo.,  91  (1867).  See,  also,  Snedeker  v.  Warring,  12  N.  Y.,  170  (1854)  ; 
D'Eyncourt  v.  Gregory,  L.  E.,  3  Eq.,  382  (1866).  [An  organ  nineteen 
feet  wide,  eleven  feet  deep,  and  twenty-two  feet  high,  fastened  to  the 
floor  by  two  tenpenny  nails,  passes  under  a  mortgage  of  the  church  build- 
ing. Chapman  v.  Union  Mut.  L.  Ins.  Co.,  4  111.  App.,  29,  .34  (1879).  Mir- 
ror frames,  hat-racks,  and  umbrella  stands    annexed  to  and  designed  for 

450 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *300 

a  building  in  the  process  of  construction,  and  corresponding  in  material 
with  the  inner  surface,  and  whose  removal  would  leave  unfinished  walls,  are 
a  part  of  the  realty.     Ward  v.  Kilpatrick,  85  N.  Y.,  413,  420  (1881).] 

So,  marble  and  imitation  marble  slabs,  placed  by  the  owner  in  a  house 
belonging  to  him  after  its  completion,  and  resting  upon,  but  not  fastened 
to,  brackets  screwed  into  the  walls,  are  a  part  of  the  furniture  of  the  house, 
and  do  not  pass  to  the  vendee.  Weston  v.  Weston,  102  Mass.,  514  (1869). 
See,  also.  Ex  parte  Morrow,  1  Lowell's  Dec,  386  (1869) ;  s.  c,  2  N.  B.,  R. 
(2d  ed.),  665. 

[Where,  for  about  three  years  mantels  were  not  fastened  in  any  way, 
but  were  afterwards  fastened  to  the  wall  to  keep  them  from  toppling,  and 
the  wall  concealed  by  the  mantels  was  plastered  and  kalsomined,  such 
mantels  are  not  fixtures  covered  by  a  mortgage.  Philadelphia  Mort.  Co.  v. 
Miller,  20  Wash.,  607,  612  (1899).  In  this  case,  Dunbar,  J.,  in  delivering 
the  opinion  of  the  court,  says :  "In  investigating  a  question  of  this  kind, 
we  can  not  shut  our  eyes  to  the  many  changes  that  have  been  wrought 
by  time  in  the  fashion  and  character  of  household  furnishings.  Anciently, 
mantels  were  uniformly  built  as  a  part  of  the  house,  and  therefore  be- 
came a  fixture  to  the  realty.  The  house  was  built  with  reference  to  the 
mantel  and  the  mantel  with  reference  to  the  house.  It  was  a  part  of  the 
plans  and  specifications  of  the  house,  and  could  not  have  been  removed 
without  materially  affecting,  not  only  the  appearance,  but  the  real  use- 
fulness of  the  house.  But  advancing  mechanical  science  and  taste  have 
evolved  an  altogether  differently  constructed  mantel,  and  mantels  such  as 
are  described  by  the  testimony  in  this  case  are  now  constructed  without  ref- 
erence to  any  particular  house  or  particular  fireplace.  They  are  what  are 
called  'stock'  mantels,  and  are  sold  separately  and  made  adaptive  to 
any  kind  of  a  house.  They  are,  iu  fact,  as  much  a  separate  article  of 
merchandise  as  a  bedstead  or  table.  So  that,  regarding  the  changed  con- 
ditions in  this  respect,  the  rules  of  law  must  be  changed  and  adapted  to  the 
changed  character  of  the  furniture.  A  few  years  ago,  sideboards  were 
constructed  in,  and  were  made  a  part  of  the  house,  and  were,  of  necessity, 
fixtures;  while  now  they  are  ordinarily  separate  pieces  of  furniture  and, 
by  common  consent,  are  moved  from  one  house  to  another.  The  same 
advancement  has  been  made  in  bath  tubs.  The  old  fashioned  bath  tub,  that 
was  scaled  in  and  actually  made  a  part  of  the  bath  room,  has  largely  given 
place  to  the  more  convenient  bath  tub,  that  rests  upon  legs  and  can  bo 
attached  to  any  heating  system  that  happens  to  prevail  in  the  house  where 
it  is  used.  And  so  with  heaters  or  boilers.  In  this  instance  the  boiler 
is  in  no  way  attached  to  the  building,  excepting  by  its  plumbing  connec- 
tions. It  could  be  detached  without  in  any  way  injuring  the  realty;  and 
we  see  no  reason  why  it  should  be  considered  a  fixture  any  more  than  the 
ordinary  stove  which  is  connected  by  pipes  with  the  boiler  and  to  the 
plumbing  system  generally.  One  could  be  as  easily  detached  as  the  other, 
and  yet  wo  think  it  has  never  been  held  by  any  court,  or  contended  by  any 
one,  that  a  stove,  though  connected  by  pipes  to  the  plumbing  system,  was  a 
fixture  which  could  not  be   removed."] 

451 


*300  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

ol"  the  fee  evidenced  by  necoi-dini;-  acts,  boeoine  a  permanent 
accession  to  and  pass  with  the  realty  like  other  fixtures.'^ 

[Slate  mantels  hung  upon  hooks  are  no  part  of  the  realty.  Cottrell  v. 
Gritlin,   18  N.  Y.  Wkly.   Dig.,  270    (Supr.   Ct.,   1883).] 

[Cornice-poles  are  fixtures,  but  the  valences  are  not;  nor  are  the  mantel 
boards,  which  lie  upon  unfixed  mantelpieces.  Smith  v.  Maclure  (1884),  32 
W.  E.,  459,  460.] 

[Picture-rods,  grates,  and  trellis  work  in  a  fernery,  do  not  pass  as  a  part 
of  the  realty.     Nisbet  v.  Mitchell-Inues  (1880),  17  Scot.  Law  Rep.,  438).] 

[Pictures  on  canvas  stretched  upon  wooden  frames,  fastened  by  plates 
and  screws  to  the  wall,  do  not  pass  with  the  realty,  although,  if  removed, 
it  would  leave  a  bare  stone  wall.  Cochrane  v.  Stevenson  (1891),  18  Sess. 
Cas.,  4th  Ser.,  1208.] 

[Likewise,  as  to  marble  wainscoting,  water-closets,  piping,  and  a  storm- 
door.  Schreyer  v.  Jordan,  58  N.  Y.  Supp.,  206  (1899)  ;  chairs  screwed  to 
the  floor  of  a  hippodrome.  Lyon  v.  London  City  Bank  [1903],  2  K.  B., 
135;  a  filter,  connected  only  by  pipes.  Sayles  v.  National  Water  Co.,  16 
N.  Y.  Supp.,  555,  557   (1891).] 

[An  elevator  is  not  such  a  fixture  so  firmly  attached  to  the  realty  as  to 
compel  the  buyer  to  accept  it.  Morse  v.  Arnfield,  15  Pa.  Super.,  140 
(1900).] 

7  Funk  V.  Brigaldi,  4  Daly,  359  (1873).  In  this  case,  during  negotiations 
for  the  sale  of  a  house,  the  plaintiff  (the  owner),  as  an  inducement  to  de- 
fendant to  purchase,  informed  him  that,  "the  house  was  complete  and 
ready  for  him  to  move  into,  and  that  all  he  had  to  do  was  to  walk  in  and 
light  the  gas,  as  it  was  complete. ' '  Held,  that  this  statement  being  uncon- 
tradicted by  the  plaintiff,  was  sufficient  evidence  to  show  that  the  gas 
fixtures  had  been  annexed  by  the  owner  "to  enhance  the  general  value 
of  the  estate  and  not  for  its  temporary  enjoyment,"  and  that  therefore 
they  became  a  part  of  the  realty  and  passed  with  the  deed.  Steuart  v. 
Douglas    (1870),   Brown  Fixt.,   Append.   A. 

In  Ex  parte  Acton,  4  L.  T.  (N.  S.),  261  (1861),  and  Ex  parte  Wilson,  2 
Mont.  &  Ayr.,  61  (1835) ;  s.  C,  4  Dea.  &  Chit.,  143;  4  L.  J.  (N.  S.),  Bank., 
24,  before  cited,  the  gas  burners,  etc.,  were  accessory  to  a  mill,  and  the  case8 
may  probably  be  distinguished  on  that  account. 

[An  intention  is  shown  to  make  gas  fixtures  a  part  of  a  hotel  where  the 
builders  placed  the  expense  of  such  fixtures  in  the  "construction  account," 
which  was  carried  to  the  '  *  real  estate  account ; ' '  and  by  the  fact  that  the 
builders  did  not  intend  to  conduct  the  hotel  themselves,  but  to  lease  it, 
and  the  gas-fixtures  were  leased  as  a  part  of  the  building;  such  intent  is 
farther  shown  by  the  fact  that  the  chandeliers  were  designed  especially  for 
this  building,  and  are  of  great  value  in  connection  therewith,  but  of  in- 
significant value  if  removed;  and,  farther,  a  presumption  that  the  builders 
did  not  regard  the  gas-fixtures  as  personal  property  is  shown  by  their 
not  including  them  in  their  tax  return  of  "personal  property."  Central 
Trust  Co.  V.  Cincinnati  Hotel  Co.,  26  Weekly  Law  Bulletin   (Super.  Ct.  of 

452 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *301 

*Wliat  is  requisite  in  order  to  constitute  a  constructive  [*301] 
annexation  of  a  chattel  to  the  realty,  has  already  been  consid- 
ered in  a  preceding  chapter,^  and  will  not  be  here  repeated.  It 
has  long  been  well  settled  that  articles  constructively  annexed  to 
the  realty,  pass  by  a  conveyance  thereof,  though  not  actually 
united  thereto.^     It  is  also  well  settled  that  articles  which  are 

Cincinnati),  149;  and  in  Fratt  v.  Wliittier,  58  Cal.,  126,  132  (1881),  such 
intention  was  shown  by  the  globes  being  lettered  "Orleans  Hotel."  See 
McFarlane  v.  Foley,  27  Ind,  App.,  484,  485  (1901)  ;  Temple  Co,  v.  Penn 
Mut.  Ins.  Co.,   69   N.  J.  Law,   36    (1903).] 

[A  portable  heater  and  gas-fixtures,  although  personal  property,  will 
pass  under  a  deed  where  the  grantor  orally  agrees  that  they  should  go 
with  the  house.     Heysham  v.  Dettre,  89  Pa,  St.,  506,  508   (1879).] 

[Where  a  building  was  intended  to  be  used  as  a  club,  whatever  articles 
are  substantially  a  part  of  it  and  can  not  be  removed  without  depriving 
it  of  that  which  was  intended  to  be  used  with  it,  ought  to  be  included  in 
a  mortgage  of  such  building.  Smith  v,  Maclure  (1884),  32  W.  E., 
459.] 

^Ante  p.  *33. 

2  As  upper  mill-stones  though  raised  to  be  picked.  Wystow  's  Case  of 
Gray's  Inn,  14  H.  8,  25,  pi.  6  (1522)  ;  Liford's  Case,  11  Co.,  50  b  (1614) ; 
Place  v,  Fagg,  4  Man.  &  Ey.,  277  (1829)  ;  s.  c,  7  L.  J.,  K.  B.,  195;  Walms- 
ley  v.  Milne,  7  C.  B.  (X.  S.),  115  (1859);  s.  c,  6  Jur,  (N,  S.),  125;  29 
L.  J.,  C.  P.,  97;  1  L.  T.  (N.  S.),  62;  8  Am.  Law  Eeg.,  373.  Wystow 's 
Case  will  be  found  translated  in  4  Man.  &  Ey.,  280,  note  (g). 

So,  as  to  doors,  windows,  keys,  etc.  See  Wystow 's  Case ;  Lif ord  's  Case 
{supra);  Shep,  Touch.,  90;  Pettengill  v.  Evans,  5  N.  H.,  54  (1829);  State 
V.  Elliott,  11  N.  H.,  540  (1841).  See,  also.  Wood  v.  Bell,  6  Ell.  &  B.,  355, 
362  (1856)  ;  s.  c,  25  L.  J.,  Q.  B.,  321,  where  Jervis,  C.  J.,  said:  "I  think 
those  things  pass  which  have  been  fitted  to  the  ship  and  have  once  formed 
a  part  of  her,  as,  for  instance,  a  door  hung  upon  hinges,  although  after- 
wards removed  for  convenience.  I  do  not  think  the  circumstance  that 
materials  have  been  fitted  and  intended  for  the  ship  makes  them  part  of  the 
ship." 

[So,  as  to  a  watchman's  clock.  Haggert  v.  Brampton,  28  Can.,  174,  182 
(1897).] 

So,  rough  planks  laid  down,  but  not  nailed,  as  an  upper  floor  of  a  gin- 
houso  and  used  to  spread  cotton-seed  upon,  have  been  held  to  be  fixtures 
and  to  pass  by  a  conveyance  of  the  land.  Bryan  v.  Lawrence,  5  Jones'  Law, 
337  (1858).  The  grounds  of  this  decision  were  that  the  planks  were  an 
essential  part  of  the  house;  and  it  was  observed  by  Battle,  J.,  in  delivering 
the  opinion,  that,  "had  they  been  laid  upon  the  sleepers  in  piles,  for  safe- 
keeping or  for  convenience,  or  spread  there  to  dry,  and  not  to  be  used  with 
the  house,  they  might  have  been  regarded  as  personal  chattels,  and,  of 
course,  would  not  have  been  included  in  the  sale  of  the  land."     It  was, 

453 


*301  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

however,  held,  in  Noyos  v.  Terry,  1  Lans.  (N.  Y.),  219  (1869),  that  unat- 
tached scantling,  which  had  been  used  to  liang  tobacco  on  to  cure  in  a 
barn  built  on  a  farm  where  tobacco  had  been  raised,  which  were  not  fitted 
into  the  barn,  but  were  put  up  or  taken  down  as  they  were  or  were  not 
wanted  for  the  drying  of  the  tobacco,  and  at  the  time  of  the  sale  were 
partly  piled  up  in  the  barn,  and  partly  used  as  a  scaffolding  for  straw, 
no  tobacco  having  been  raised  on  the  farm  for  a  year  or  two  previously, 
did  not  pass  as  fixtures  by  a  conveyance  of  the  land.  See,  also.  Whiting 
V.  Brastow,  4  Pick.,  310   (1826). 

So,  as  to  rails  laid  into  a  fence,  though  not  otherwise  connected  with  the 
land  than  by  their  weight.  Seymour  v.  Watson,  5  Blackf.,  555  (1841); 
Burleson  v.  Teeple,  2  G.  Greene,  542  (1850);  Mitchell  v.  Billingsley,  17 
Ala.,  391  (1850);  Glidden  v.  Bennett,  43  N.  H.,  306  (1861);  Sawyer  v. 
Twiss,  26  N.  H.,  348  (1853).  [Kimball  v.  Adams,  52  Wis.,  554,  556 
(1881).] 

So,  as  to  the  materials  thereof,  though  accidentally  or  temporarily  de- 
tached without  intent  to  divert  them  from  their  use  as  a  part  of  the  fence. 
Goodrich  v.  Jones,  2  Hill,  142  (1841).  See,  also,  Climer  v.  Wallace,  28 
Mo.,  556  (1859);  Collins  v.  Bartlett,  44  Cal.,  371   (1872). 

Quaere,  however,  as  to  a  portable  fence  composed  of  posts  and  boards 
erected  on  public  land,  and  resting  wholly  on  the  surface  thereof,  which  it 
seems  is  personalty.     Pennybacker  v.  McDougal,  48  Cal.,  160   (1874). 

But  where  A.  grants  part  of  a  lot  of  land  to  B.,  bounding  such  part  on  a 
straight  line  between  two  monuments,  and  stipulating  that  a  fence  partly 
on  the  line  and  partly  on  the  land  conveyed,  should  still  belong  to  the 
grantor;  and  afterwards  grants  the  rest  of  the  land  to  C,  bounding  it  on 
the  same  straight  line;  held,  that  that  part  of  the  fence  standing  on  the 
land  of  B.  did  not  pass  by  such  conveyance.  Eopps  v.  Barker,  4  Pick.,  239 
(1826). 

It  was  said  in  Conklin  v.  Parsons,  1  Chand.,  240  (1849)  ;  s.  C,  2  Pinney, 
264,  that  "the  better  opinion  is,  that  where  rails  have  been  placed  along 
the  line  of  any  intended  fence,  for  the  purpose  of  being  laid  into  the  fence, 
though  not  actually  applied  to  that  use,  they  pass  by  a  deed  of  the  land, 
there  having  been  a  manifest  appropriation  to  the  use  of  the  land."  The 
opinion  was  also  expressed  in  Ripley  v.  Page,  12  Vt.,  353  (1839),  that  such 
materials  pass  "the  same  as  the  materials  of  a  fence  accidentally  fallen 
down  or  purposely  taken  down  to  be  immediately  reconstructed."  This 
doctrine  is,  however,  opposed  to  the  rule  that  mere  intention  to  annex 
unaccompanied  by  any  act  towards  carrying  that  intention  into  effect,  is 
insufficient  to  constitute  a  fixture,  and  is  believed  to  be  unsound.  See  Cook 
V.  Whiting,  16  111.,  480  (1855);  ante,  pp.  *39,  note,  and  *40,  note.  See, 
however,  dicta  in  McLaughlin  v.  Johnson,  46  111.,  163  (1867);  Noble  v. 
Sylvester,  42  Vt.,  146   (1869),  ante,  p.  *40. 

Hop-poles,  necessarily  used  in  cultivating  hops  (which  have  perennial 
roots  continuing  for  a  series  of  years)  though  taken  down  for  the  purpose 
of  gathering  the  crop  and  piled  in  heaps  in  the  hop-yard  with  a  view  of 
being  re-set  in  the  season  of  hop-raising,  are  a  part  of  the  realty  and  pass 

454 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *301 

by  a  sale  on  the  foreclosure  of  a  mortgage  executed  prior  to  their  being 
placed  in  the  hop-yard;  and  they  can  not  be  sold  by  the  executor  of  the 
deceased  mortgagor  as  personal  property.  Bishop  v.  Bishop,  11  N.  Y.,  123 
(1854).     See  Noyes  v.  Terry,  1  Lans.,  219,  222   (1869)    {supra). 

The  rule  as  to  machines  is  that  ' '  the  chattel  must  be  something  which 
belongs  to  the  machine  as  a  part  of  it."  Ex  parte  Astbury,  L.  K.,  4  Ch. 
App.,  630  (1869).  [Gooderham  v.  Denholm,  18  Up.  Can.  Q.  B.,  203,  219 
(1859);  Crawford  v.  Findlay,  18  Gr.  Ch.,  51,  54  (Ont.,  1877).  Necessary 
parts  of  fixed  machines,  neither  being  practically  available  for  the  purpose 
for  which  it  was  used  without  the  other,  are  real  estate.  Haggert  v. 
Brampton,  28  Can.,  174,  182  (1897).  So,  as  to  loom  beams,  not  fastened 
to  but  essential  parts  of  the  looms,  and  laid  upon  them  when  in  use.  Hope- 
well Mills  V.  Taunton  Bank,  150  Mass.,  519,  523   (1890).] 

So,  as  to  the  rolls  including  duplicates  and  different  sizes  of  an  iron 
rolling-mill,  they  being  a  constituent  and  necessary  part  of  the  machinery, 
though  they  are  not  all  in  the  housings,  but  in  part  temporarily  dis-annexed 
and  lying  loose  in  the  mill.  Voorhis  v.  Freeman,  2  W.  &  S.,  116  (1841) ; 
Pyle  V.  Pennock,  2  W.  &  S.,  390  (1841).  In  this  case  also  held  that  the 
plates  of  defective  boiler-iron  covering  the  floor  of  the  mill  and  kept  down 
simply  by  their  weight,  but  which  are  an  indispensable  part  of  the  mill, 
pass  with  the  mill.  See  these  cases  commented  on  in  chapter  1,  p.  19. 
Same  points  also  held  in  Ex  parte  Astbury,  L.  R.,  4  Ch.  App.,  630  (1869)  ; 
s.  C,  38  L.  J.,  Bank.,  9;  20  L.  T.  (N.  S.),  997;  17  W.  E.,  997.  In  this 
case  it  was  also  held  that  rolls  not  fitted  to  their  bearings  in  the  machine 
and  prepared  for  use,  were  not  fixtures.  See,  also,  Johnson  v.  Mehaffey,  43 
Penn.  St.,  308  (1862)  ;  Mather  v.  Fraser,  2  K.  &  J.,  536  (1856)  ;  Metropoli- 
tan Counties,  etc..  Society  v.  Brown,  26  Beav.,  454  (1859);  Burnside  v. 
Twitchell,  43  N.  H.,  390  (1861);  Ex  parte  Acton,  4  L.  T.  (N.  S.),  261 
(1861);  Fisher  v.  Dixon,  12  CI.  &  Fin.,  312  (1845);  Peck  v.  Batchelder, 
40  Vt.,  233  (1867). 

In  Peck  V.  Batchelder,  double  windows  were  made  for  a  house  and  fitted 
to  its  window  casings;  they  wore  not  nailed  or  fastened  in,  but  were  held 
by  being  closely  fitted  and  pushed  in,  and  remained  in  one  winter  and  until 
warm  weather,  when  they  were  taken  out  and  set  away  in  the  house,  the 
building  having  in  it  all  the  windows  for  which  it  was  constructed  at  the 
time  of  the  conveyance.  Blinds  were  also  made  for  the  side-lights  in  the 
hall,  but  never  fitted  to  the  windows  or  put  in,  but  simply  set  up  by 
the  windows.  Both  windows  and  blinds  were  not  intended  by  the  grantor  to 
pass  with  the  house,  but  were  secreted  so  that  the  grantee  did  not  at  the 
time  of  the  purchase  know  of  their  existence,  there  being  nothing  about  the 
house  or  windows  to  indicate  that  the  double  windows  or  blinds  belonged 
thereto.  Held,  that  never  having  been  actually  or  constructively  annexed  to 
the  house,  they  did  not  pass  by  the  conveyance. 

See,  however,  the  Scotch  case  of  .Johnston  v.  Dobie,  Mor.  Diet.,  5443 
(1783).  In  this  case  .Johnston  executed  in  favor  of  his  wife  ct  al.  a  disposi- 
tion of  the  whole  estate  heritable  and  movable  that  should  belong  to  him 
at  the  time  of  his  death,  which,  as  he  lived  only  a  few  days  after  the  date 

455 


*302  TUE  LAW  OF  FIXTURES.  [CHAP.   IX. 

[*302]  *usually  actually  annexed  to,  and  form  a  part  of  the 
realty,  do  not  lose  the  character  of  realty,  and  become  chattels 
by  a  severance  for  a  temporary  purpose  only,  as  for  repairs,  and 

[*303]  pass  *by  a  conveyance  of  the  land  notwithstanding  such 
severance.^     But  where  the  severance  is  not  for  a  temporary 

of  the  deed,  was  at  the  instance  of  his  heir  reduced  ex  capite  lecti,  ' '  so  far 
as  respects  the  heritable  subjects  thereby  conveyed,"  When  J.  died  a 
house  was  being  erected  for  him  in  which  a  set  of  doors  and  windows,  etc., 
were  then  lying,  in  order  to  be  fixed  in  their  proper  places  in  the  building, 
and  a  question  arising  as  to  them  between  the  heirs  and  disponees,  the  for- 
mer contending  that  along  with  the  house  they  had  fallen  under  the  herit- 
able succession,  and  the  latter  claiming  them  as  movable  subjects,  it  was 
held,  by  a  majority  of  the  court  that  in  cases  like  this,  where  the  will  of 
the  proprietor  so  strongly  marked  is  being  carried  into  execution  by  overt 
acts,  such  animus  should  have  full  effect,  and  that  the  articles  of  unfixed 
work  were  parts  of  the  house  by  destination. 

So,  in  Texas  a  wooden  cistern  set  upon  blocks  by  the  house  to  catch  water 
for  the  use  of  the  inmates,  and  used  and  depended  upon  for  that  purpose, 
in  which  State  in  many  instances  cisterns  are  substitutes  for  wells,  and 
where  a  house  or  farm  without  a  cistern  would  often  be  considered  almost 
uninhabitable,  is  held  to  be  as  much  a  part  of  the  realty  as  the  key  to  the 
door,  and  to  pass  with  the  land.  Cole  v.  Roach,  37  Tex.,  413  (1872).  So 
held,  also,  in  Blethen  v.  Towle,  40  Me.,  310  (1855),  as  to  a  wooden  cistern 
sitting  upon  blocks  in  the  cellar  and  filled  by  conductors  from  the  outside 
of  the  house. 

See,  also,  Eufford  v.  Bishop,  5  Euss.,  346  (1829) ;  s.  c,  7  L.  J.,  Ch.,  108, 
114,  where  an  iron  chest  and  a  set  of  book-shelves  near  it,  the  wall  being 
cut  away  to  admit  them,  were  considered  as  fixed  to  the  freehold.  In  this 
case  (7  L.  J.,  Ch.,  114),  the  M.  E.  said:  "If  a  wall  is  cut  away  to  admit 
a  thing,  that  thing  must  be  considered  as  fixed  to  the  freehold."  [See,  as 
to  a  safe  for  permanent  use  in  a  factory,  Haggert  v.  Brampton,  28  Can., 
174,  183  (1897)  ;  and  as  to  tubs,  vats  and  casks  designed  for  a  brewery 
and  essential  to  a  brewery,  Equitable  Trust  Co.  v.  Christ,  47  Fed.,  756,  757 
(U.  S.  C.  C,  Mich.,  1880).] 

The  question  as  to  whether  railroad  cars,  etc.,  are  fixtures  passing  by  a 
conveyance  of  the  road  will  be  found  considered  ante,  p.  *34,  and  will  not 
be  repeated  here.  See,  also,  Sncdeker  v.  Warring,  ante,  p.  *25;  and  the 
subject  of  constructive  annexation  considered  ante,  p.  *33. 

[In  Hill  V.  Munday,  89  Ky.,  36  (1889),  ice  in  an  ice  house  was  held  to 
pass  with  a  hotel.] 

[See  Monti  v.  Barnes  [1901],  1  K.  B.,  205,  as  to  constructive  annexa- 
tion.] 

iWadleigh  v.  Janvrin,  41  N.  H.,  503  (1860),  where  it  was  held,  that  tie- 
up  planks,  stanchion-timbers,  hinge-staples  and  tie-chains,  temporarily  dis- 
annexcd  and   removed   from   a  barn   during  the   process   of,   and   for   con- 

456 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC. 


^304 


purpose,  but  permanent  and  without  any  intention  of  re-annex- 
ing them  to  *the  realty,  they  do  not  pass  by  a  convey-  [*304] 
anee  of  the  land.^  According  to  the  better  opinion,  where  the 
severance  is  by  the  act  of  God,  there  being  in  such  case  no  inten- 

venience  in  repairing  the  barn,  and  only  partially  replaced  at  the  time  of 
the  conveyance,  remained  parcel  of  the  realty  and  passed  with  the  land  to 
the  grantee;  also,  held,  in  the  same  case,  that  the  trough,  sweep,  cast-iron 
nuts  and  other  portion  of  the  grinding  part  of  a  cider-mill,  detached  from 
the  mill  when  not  in  use  for  the  sake  of  storage-room,  and  at  the  time  of 
the  sale  of  the  land  lying  about  the  cider-house  in  detached  portions,  passed 
as  a  part  of  the  realty;  McLaughlin  v.  Johnson,  46  111.,  163  (1867),  holding 
that  rails  laid  in  a  fence,  temporarily  lent  to  the  owner  of  an  adjoining 
tract,  on  the  sale  of  the  land  to  which  they  belonged,  to  such  borrower,  pass 
to  him  with  the  land;  Goodrich  v.  Jones,  2  Hill,  142  (1841).  See,  also,  the 
note  next  preceding.  [See,  ante,  p.  *43,  and  Bacon  v.  Lewis,  33  Can.  Law 
J.,  680,  687   (Ont.,  1897).] 

[A  steam-engine  bolted  to  a  stone  foundation,  is  a  part  of  the  realty, 
although  disconnected  from  the  boiler  and  unused  for  two  years,  and' 
■which  could  be  removed  by  unscrewing  the  nuts.  Tolles  v.  Winton,  63  Conn., 
440  (1893).] 

[A  sale  of  land  embraces  all  timber  unlawfully  cut  down,  and  lying 
upon  the  land  at  the  time  of  the  sale.  Duff  v.  Bindley,  16  Fed.,  178,  180 
(U.  S.  Dist.  Ct.,  Pa.,  1883).] 

[Trees  cut  upon  land  by  a  trespasser  after  the  land  has  been  seized  by 
the  sheriff,  pass  to  the  vendee  of  the  land  at  sheriff's  sale,  even  though 
removed  therefrom,  if  capable  of  identification.  Frank  v.  Magee,  49  La. 
Ann.,  1250,  1254   (1897);  50  La.  Ann.,  1066,  1069   (1898).] 

2  Curry  v.  Schmidt,  54  Mo.,  515  (1874).  In  this  case  hotel  property  was 
conveyed  by  deed  of  trust  to  secure  a  debt,  and  afterwards,  on  the  destruc- 
tion of  the  premises  by  fire,  certain  fixtures  were  during  the  progress  of  the 
fire  detached  therefrom  and  carried  to  another  lot  for  safety;  some  time 
afterwards  the  trustee  sold  the  real  estate  under  the  trust  to  the  plaintiff 
for  more  than  the  amount  of  the  debt,  who  brought  replevin  for  the  fix- 
tures. Held,  that  in  the  condition  the  premises  were  in  when  sold,  such 
fixtures  formed  no  part  of  the  realty  and  did  not  pass  simply  by  the  sale 
of  the  ruined  premises.  Adams,  J.:  "The  question  here  is  not,  whether 
the  trustee,  or  beneficiaries  in  the  trust,  could  have  reached  the  fixtures 
thus  detached,  if  necessary  for  the  payment  of  the  debts;  but  whether  the 
title  to  the  fixtures  passed  simply  by  a  sale  of  the  ruined  premises.  There 
is  nothing  in  the  case  to  show  that  such  was  the  intention  of  the  parties. 
In  my  judgment,  the  trustee  could  have  sold  the  fixtures  as  personal  prop- 
erty; but  ho  had  no  right  to  sell  them  merely  by  selling  the  ruined  prem- 
ises." Sec,  also,  O 'Dougherty  v.  Felt,  65  Barb.,  220  (1S66).  [See,  ante, 
p.   •46.     Brule  v.  Dostaler,  26  Kap.  Jud.  Kev.,  619    (Que.,  1S74).] 

[Where  the  purchaser  of  stones  from  the  owner  of  the  soil,  removes 
them  from  the  walla  and  fields,  but  piles  them  upon  the  same  farm,  they 

457 


♦305  THE  IxiVW  OF  FIXTURES.  [CHAP.   IX. 

[*305]  tion  to  sever  on  *the  part  of  the  owner  of  the  freehold, 
the  thing  severed  does  not  lose  its  character  as  realty  by  such 
severance,  and  hence  passes  by  a  conveyance  of  the  land.=^ 

^Yith  reference  to  the  case  of  manure  made  upon  a  farm  in 
the  ordinary  course  of  husbandry  and  which  is  upon  the  pretii- 
ises  at  the  time  of  the  sale  and  conveyance  of  the  land,  there 
has  been  some  difference  of  opinion  as  to  when  it  passes  with 

do  not  pass  to  a  grantee  of  the  farm.  Fulton  v,  Norton,  64  Me.,  410 
(1875).] 

[Where  all  that  portion  of  a  fence  possessing  any  value  is  moved,  tlio 
part  left  being  old  and  rotten  rails,  the  latter  ceases  to  be  a  fence  or  a 
part  of  the  realty.     Fullington  v.  Goodwin,  57  Vt.,  641,  642   (1885).] 

3  Rogers  v.  Gilinger,  30  Penn.  St.,  185  (1858).  In  this  case  the  frag- 
ments of  a  large  frame  building  demolished  by  a  tempest,  leaving  the  foun- 
dation and  floors  nearly  entire,  but  breaking  the  superstructure  so  that  its 
materials  could  not  be  replaced  or  used  in  the  construction  of  a  similar 
building,  Tvere  held  to  pass  as  a  part  of  the  realty  by  a  sheriff 's  sale  on  a 
judgment  which  was  a  lien  on  the  premises  prior  to  a  demolition  of  the 
building.  The  rule  of  decision  was  thus  laid  down  by  Strong,  J.:  "The 
true  rule  would  rather  seem  to  be,  that  which  was  real  shall  continue  real 
until  the  owner  of  the  freehold  shall  by  his  election  give  it  a  different  char- 
acter." Herlakenden 's  Case,  4  Co.,  62  a  (1589);  Bowles's  Case,  11  Co., 
81b  (1615),  were  cited  as  authorities  for  the  decision.  In  rendering  his 
opinion  in  said  cause,  Strong,  J.,  further  said:  "The  act  of  God,  it  is 
said,  shall  prejudice  no  one;  4  Co.,  86b;  yet  the  maxim  is  not  true  if  a 
tempest  be  permitted  to  take  away  the  security  of  a  lien  creditor,  and 
transfer  that  which  was  his  to  the  debtor  or  the  debtor's  assignees.  If 
trees  are  prostrated  'per  vim  venti,'  they  belong  to  the  owner  of  the  in- 
heritance, not  to  the  lessee;  Herlakenden 's  Case,  ut  sxipra.  He  takes  them 
as  a  part  of  the  realty.  True,  he  may  elect  to  consider  them  as  personalty, 
and  this  he  does  when  he  brings  trover  for  their  conversion;  but  until  such 
election  they  belong  to  him  as  parcel  of  the  inheritance.  If  a  tenant  hold 
'without  impeachment  of  waste,'  the  property  in  the  timber  is  in  him;  but 
if  there  be  no  such  clause  in  his  lease,  and  he  remove  from  the  land  trees 
blown  down,  such  removal  is  waste.  That  could  not  be,  however,  unless 
notwithstanding  the  severance,  they  continue  part  of  the  realty,  for  waste 
is  an  injury  to  realty.  I  am  aware  that  it  is  said  to  have  been  held  that 
if  an  apple-tree  be  blown  down,  and  the  tenant  cut  it  it  is  no  waste;  2 
Bolle  Abr.,  820.  That  may  well  be,  for  the  falling  of  the  tree  is  through 
the  act  of  God,  not  of  the  tenant,  and  the  cutting  of  the  fallen  timber  is 
but  an  exercise  of  the  tenant's  right  to  estovers;  but  if  he  remove  from 
the  land  fallen  timber,  it  has  been  ruled  to  be  waste."  See,  also.  Bull.  N. 
P.,  33;  Paget 's  Case,  5  Co.,  76  b  (1593-4);  Goddard  v.  Bolster,  6  Me.,  427 
(1830). 

However,  in  Buckout  v.  Swift,  27  Cal.,  433  (1865),  the  rule  is  laid  dov.-a 

458 


CH^VP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *306 

*the  land.  It  seems  very  clear  that,  if  spread  upon  the  [*306] 
land  or  incorporated  with  the  soil,  it  passes  by  a  conveyance 
thereof  as  parcel  of  the  soil.  And  the  weight  of  authority 
seems  firmly  to  establish  the  rule  that  such  manure,  whether 
lying  scattered  about  or  in  heaps  in  the  barn-yard,  or  in  heaps 
at  the  stable  windows,  in  the  state  in  which  it  usually  accumu- 
lates, is  part  of  the  freehold,  and  passes  by  a  conveyance  there- 
of,^ unless  reserved  in  the  deed.^ 

that  the  severance  and  removal  of  a  house  from  the  freehold,  changes  the 
character  of  the  house  from  real  to  personal  property  whether  the  severance 
is  by  the  act  of  God  or  the  act  of  man;  and  it  was  accordingly  held  that 
such  severance  and  removal  from  the  lot  by  a  flood  withdrew  the  house  from 
the  operation  of  the  mortgage  lien;  and  after  the  removal  the  mortgagor 
might  sell  the  house  and  the  purchaser  convert  it  to  his  own  use. 

[Brick,  being  debris  of  a  burned  building,  and  left  upon  the  land,  pass 
to  the  grantee.     Guernsey  v.  Phinizy,  113  Ga.,  898,  900  (1901).] 

[A  distillery  was  consumed  by  fire,  leaving  an  engine,  boiler  and  the 
machinery  disconnected  upon  the  ground,  and  useless  except  as  old  iron. 
The  owner  removed  the  boiler,  and  sold  the  land  to  one  buying  for  the 
purpose  of  excavating  for  sand,  and  then  building  thereon.  Held,  that 
because  the  articles  had  once  been  fixtures,  their  ruins  did  not  necessarily 
remain  such;  and  that  all  of  the  facts  indicated  an  intent  on  the  part  of 
the  grantor  and  of  the  grantee  that  the  old  iron  was  not  to  pass  with  the 
land.     Triplett  v.  Mays,  13  Ky.  L.  E.,  874   (Super.  Ct.,  1892).] 

[In  Leidy  v.  Proctor,  97  Pa.  St.,  486,  492  (1881),  it  was  held  that 
fallen  timber  passes  to  the  grantee ;  but  in  Jenkins  v.  Lykes,  19  Fla.,  148, 
158  (1882),  it  was  held  that  a  conveyance  of  land  does  not  carry  fallen 
timber  previously  purchased  by  another,  nor  trees  felled.  See,  ante,  p. 
♦246,  and  p.  *43.] 

1  Parsons  v.  Camp,  11  Conn,,  525  (1836);  Plumer  v.  Plumer,  30  N.  H., 
558  (1855)  ;  Kittredge  v.  Woods,  3  N.  II.,  503  (1826)  ;  Stone  v.  Proctor,  2 
D.  Chip.,  108  (1824);  Goodrich  v.  Jones,  2  Kill,  142  (1841);  Wetherbeo  v. 
Ellison,  19  Vt.,  379  (1847),  where  it  was  held  to  pass  though  piled  up  in 
the  stables  till  removed  from  the  farm.  [Vehuc  v.  Mosher,  76  Me.,  469 
(1884);  Norton  v.  Craig,  68  Me.,  275,  276  (1878);  Elting  v.  Palcn,  14 
N.  Y.  Supp.,  607   (1891).] 

[Manure  made  upon  a  farm,  in  the  ordinary  cour.se  of  husbandry,  goes 
to  the  mortgagee  as  against  one  having  purchased,  after  condition  broken, 
with  knowledge  that  the  mortgagee  had  forbidden  its  removal.  Chase  v. 
Wingate,  68  Me.,  204,  207  (1878).] 

[Where  a  sale  was  made  of  less  than  an  acre  of  land,  being  a  part  of 
a  farm,  manure  made  upon  the  farm,  which  happened  to  be  piled  upon  the 
lot  conveyed,  did  not  form  a  part  of  the  land.  Collier  v.  Jenks,  19  R.  I., 
137,  138   (1895).] 

[Where,  in  performance  of  his  contract  of  sale,  a  landowner  scrapes  up 

459 


•307  THE  LAW  OF  FIXTURES.  [CIIAP.  IX. 

But  where  the  manure  is  not  made  in  the  ordinary  course  of 
husbandry  the  case  may  be  different.  Thus,  by  the  conveyance 
of  a  house  and  stable  with  a  small  piece  of  land  used  as  a  back 
yard,  but  not  cultivated,  manure  in  the  stable  cellar  on  the 
ground,  biit  not  incorporated  with  the  soil,  made  by  the  horses 
of  the  grantor  who  was  a  teamster,  does  not  pass.^  So,  if  a 
lessor  during  the  continuance  of  the  tenancy,  sells  and  conveys 
[*307]  *land,  on  which  is  situated  manure  made  from  the  ma- 
terials of  the  tenant  under  such  circimistances  that  as  against 
the  landlord  he  has  a  right  to  remove  it,  to  a  third  person  having 
notice  of  the  tenant's  rights,  but  without  reserving  the  manure, 
such  purchaser  cannot  hold  the  manure.^  But  the  intention  of 
the  defendant,  by  keeping  in  the  stables  where  made,  the 
manure  made  by  his  animals  from  crops  raised  on  the  farm  while 
a  tenant,  to  remove  the  same  from  the  farm  without  throwing  it 

the  manure  in  his  barn-yard,  and  places  it  in  a  large  heap  upon  an  adjoin- 
ing field  ready  for  removal  by  the  buyer,  this  is  a  sufficient  severance  and 
delivery  so  that  it  vrill  not  pass  to  a  subsequent  grantee  of  the  farm  with- 
out notice.     French  v.  Freeman,  43  Vt.,  93   (1870).] 

The  opposing  case  of  Ruckman  v.  Outveater,  28  N.  J.  Law,  581  (1860), 
holding,  that  where  land  is  conveyed  by  deed  without  any  clause  of  reserva- 
tion, manure  lying  in  and  around  the  barn-yard  does  not  pase  to  the 
grantee,  seems  contrary  to  the  clear  weight  of  authority. 

["Manure  laid  upon  lands  may  pass  under  a  conveyance  of  the  lands, 
but  that  is  not  under  the  law  of  fixtures."  Blancke  v.  Rogers,  26  N.  J. 
Eq.,  563,  568  (1875).  And  in  Chase  v.  Wingate,  68  Me.,  204  (1878),  it 
holds  that  in  general,  manure,  made  in  the  course  of  husbandry  upon  a 
farm,  is  so  attached  to  and  connected  with  the  realty  that  it  passes  as 
appurtenant.  This  doctrine  rests  upon  the  ground  that  it  is  for  the  interest 
of  good  husbandry  and  the  encouragement  of  agriculture,  that  manure 
produced  upon  a  farm  should  be  consumed  upon  it,  and  that  the  farm 
should  not  be  impoverished  by  the  removal  therefrom  of  the  material 
necessary  for  its  enrichment  and  growth  of  succeeding  crops.  Chase  v. 
Wingate,  68  Me.,  204   (1878).] 

2  See  Plumer  v.  Plumer,  and  the  other  cases  cited  in  the  next  note 
(supra)  ;  also  Proctor  v.  Gilson,  49  N.  H.,  62   (1869). 

3  Proctor  v.  Gilson,  49  N.  H.,  62  (1869).  See,  also,  Farrar  v.  Smith,  64 
Me.,  74  (1873).  See  the  subject  further  considered  (ante,  p.  *122),  under 
the  head  Landlord  and  Tenant. 

4  Corey  v.  Bishop,  48  N.  H.,  146  (1868). 

[A  tenant,  after  the  tenancy  has  expired,  is  entitled  to  manure,  where 
the  grantee  had  notice ;  and  the  tenant  is  not  estopped  because  he  assisted 
in  making  the  sale.     Snow  v.  Perkins,  60  N.  H.,  493  (1881).] 

460 


CB.AF.  IX.]  GRANTOR    AND    GR.VNTEE,    ETC. 


^308 


on  plaintiff's  land,  supposing  that  as  between  the  defendant 
and  the  grantor  of  the  plaintiff  he  had  a  right  to  remove  it,  in 
the  absence  of  any  notice  of  this  right  either  actual  or  con- 
structive to  plaintiff,  the  grantee  of  the  land,  cannot  affect 
plaintiff's  right  to  the  manure,  unless  such  intention  was  mani- 
fested by  some  act  sufficient  to  put  plaintiff  upon  inquiry  at  the 
time  of  his  purchase.^ 

11.    The  Question  as  Affected  by  the  Words  of  the  Grant, 

Contract,  etc. 

As  has  been  already  observed,**  as  between  grantor  and 
grantee,  and  mortgagor  and  mortgagee,  etc.,  the  effort  of  a 
court  is  always  to  ascertain  and  give  effect  to  the  intent^  of 
the  parties,  if  it  can  be  done  consistently  with  established  rules 
of  law ;  and,  if  the  language  used  affords  evidence  that  an  arti- 
cle is  intended  to  pass,  it  will  pass,  whether  a  mere  chattel,  or 
one  which  by  annexation  has  become  parcel  of  the  realty.  The 
question  in  such  a  case  becomes  one  of  interpretation  and 
construction,  determinable  by  the  general  iiiles  applicable  in 
such  cases.8  ^  custom  in  the  trade,  to  consider  certain  articles 
annexed  to  the  land,  as  not  being  fixtures,  will  not  be  allowed 
in  evidence  to  alter  the  meaning  of  the  words  in  a  deed,  those 
♦words  being  that  the  mill  should  be  assigned  with  all  [*308] 
its  machinery  fixed  and  movable.^ 

sWetherbee  v.  Ellison,  19  Vt.,  379  (1847). 

[Where  a  husband  carried  on  his  wife's  farm  for  his  and  her  support, 
without  any  agreement,  in  the  same  manner  as  if  his  own,  manure  accumu- 
lated thereon,  although  increased  by  the  husband's  stock,  and  hay  brought 
upon  the  place,  is  a  part  of  the  land  as  between  husband  and  wife;  and, 
after  conveyance  by  her,  he  becomes  a  licoiisoc,  and  is  liable  to  the  grantee 
if  he  removes  the  manure,     Norton  v.  Craig,  68  Me.,  275   (1878).] 

0  Ante,  p.  *274. 

7  See  Ex  parte  Bcntley,  2  M.  D.  &  DcG.,  591  (1842);  s.  c,  6  Jur.,  719; 
Ex  parte  Lloyd,  3  Dea.  &  Ch.,  765  (1834);  s.  c,  1  Mont.  &  Ayr.,  494. 
[See  Johnston  v.  Morrow,  60  Mo.,  339,  342  (1875)  Atlantic  Trust  Co.  v. 
Atlantic  City  Laundry  Co.,  64  N.  J.  Eq.,  140,  145  (1902).] 

8  See  those  rules  well  collected  in  Rlackwell  on  Tax  Titles,  595,  et  seq. 
oBoyd  V.  Shorrock,  L.  R.,  5  Eq.,  72    (1807);   37  li.  J.,  Chanc,  144;   17 

L.  T.  (N.  S.),  197;  16  W.  E.,  102.  See,  also.  Christian  v.  Dripps,  28  Penn. 
St.,  271  (1857),  where  it  was  held  that  the  rule  of  law  as  to  fixtures  neces- 
eary  to  a  manufactory  being  a  part  of  the  freehold  cannot  be  evaded  by 

4G1 


*308  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

The  question  may  arise  rrom  the  use  of  the  terms,  "fixtures," 
"fixed  furniture,"  etc.,  which  have  already  been  alluded  to  in  a 
preceding  chapter  ;i^^  by  the  use  of  some  general  term  to  desig- 
nate the  building  conveyed,  ijistead  simply  of  conveying  the 
land  by  metes  and  bounds,  and  in  many  other  different  ways. 

Where  the  conveyance  is  of  a  factory  or  mill,  etc.,  eo  nom- 
tne,^^  with  the  privileges  and  appurtenances,  if  the  article  in 
question  is  an  essential  part  of  the  mill  or  factory,  it  is  includ- 
ed in  that  term  and  passes  therewith, ^^  whether  real  or  personal 

proof  of  a  contrary  custom.  [Williams's  App.,  1  Monaghan,  274  (Pa., 
1889).  See  Ward  v.  Kilpatrick,  85  N.  Y.,  413,  417  (1881);  Nisbet  v. 
;\[itchell-Innes   (1880),  17  Scot.  Law  Rep.,  438,  439.] 

[A  custom  can  not  control  the  effect  of  a  deed  between  grantor  and 
grantee.  ' '  What  would  pass  by  the  deed  as  part  of  the  realty  could  only 
be  excepted  by  express  reservation ;  and  such  reservation  would  have  to  be 
made  in  every  deed,  for  no  number  of  reservations  in  deeds  would  establish 
a  custom."     Thomas  v.  Davis,  76  Mo.,  72,  79   (1882).] 

ioAnte,  pp.  *7,  *166. 

11  But  a  conveyance  by  the  number  of  the  lot  adding  "on  which  is  erected 
a  woolen  manufactory, ' '  is  descriptive  of  the  realty  only.  Teaff  v.  Hewitt, 
1  Ohio  St.,  536  (1853). 

12  See  Farrar  v.  Stackpole,  6  Me.,  154  (1829)  ;  Lathrop  v.  Blake,  23  N. 
H.,  46,  65  (1851);  Teaff  v.  Hewitt,  1  Ohio  St.,  536  (1853);  Hancock  v. 
Jordan,  7  Ala.,  448  (1845);  McCluuey  v.  Lemon,  Hayes,  154  (1831);  Potts 
V.  N.  J.  Arms  Co.,  17  N.  J.  Eq.,  404  (1866)  ;  Voorhis  v.  Freeman,  2  W.  & 
S.,  116  (1841)  ;  Hoskin  v.  Woodward,  45  Penn.  St.,  42  (1863)  ;  Baldwin  v. 
Walker,  21  Conn.,  168  (1851).  [Cook  v.  Condon,  6  Kan.  App.,  574,  583 
(1897)  ;  Delaware,  L.  &  W.  E.  E.  Co.  v.  Oxford  Iron  Co.,  36  N.  J.  Eq., 
452,  455  (1883)  ;  Baker  v.  Atherton,  15  Pa.  Co.,  471,  473  (1894)  ;  Patton 
v.  Moore,  16  W.  Va.,  428,  437  (1880)  ;  Great  Western  E'y  Co.  v.  Bain,  15 
Up.  Can.  C.  P.,  207,  228  (1865);  Crawford  v.  Findlay,  18  Cr.  Ch.,  51,  54 
(Ont.,  1871);  see,  also,  Canada  Loan  Co.  v.  Traders  Bank,  29  Ont.,  479 
(1898) ;  "brewery."  Reyman  v.  Henderson  Nat.  Bank,  17  Ky.  L.  R.,  1291, 
1292  (1896)  ;  "  foundry. ' '  New  Orleans  Banking  Co.  v.  Leeds,  49  La.  Ann., 
123   (1897).] 

[A  mortgage  of  the  "National  Glass  Works"  included  the  buildings 
and  ground  upon  which  they  were  erected,  and  which  was  necessary  to 
their  use  and  operation,  and  all  machinery  and  apparatus  which  was  of  a 
permanent  character  and  essential  to  the  purposes  of  the  business.  Moro- 
tock  Ins.  Co.  V.  Eodefer,  92  Va.,  747,  753    (1896).] 

[A  "bakery"  includes  an  oven  and  all  fixtures  belonging  thereto  and 
forming  a  part  thereof.     Neib  v.  Hinderer,  42  Mich.,  451,  454   (1880).] 

[The   sale   of   a   "plantation"  includes   fences,  as   they  give  land  the 

462 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *308 

status  of  a  plantation.  Bagley  v.  Rose  Hill  Sugar  Co.,  Ill  Lz..  249 
(1903).] 

[A  levy  upon  a  "saw-mill"  covers  the  saw  with  appurtenances  and 
machinery  which  make  the  property  what  it  is  denominated.  Newhall  v. 
Kinney,  56  Vt.,  591  (1884).] 

[Where  the  contest  was  between  a  mortgagee  of  land  with  "a  planing 
mill,"  and  a  mortgagee  of  personal  property,  the  fact  that  the  machinery 
was  not  specified  in  either  instrument  was  held  to  confirm  the  conclusion 
that  it  was  covered  by  the  former  mortgage.  Shelton  v.  Ficklin,  32  Gratt., 
727,  737   (Va.,   1880).] 

[A  machine,  in  a  qualified  sense,  may  be  said  to  be  a  part  of  the  build- 
ing, but  it  is  more  accurate  to  speak  of  it  as  an  appurtenance.  Haslett  v. 
Gillespie,  95  Pa.  St.,  371,  376   (1880).] 

[Insurance  upon  a  "mill-building"  includes  the  machinery  which  makes 
and  constitutes  it  a  mill.  Brugger  v.  State  Ins.  Co.,  5  Sawy.,  304  (U.  S. 
C.  C,  Ore.,  1879);  so,  as  to  a  "starch  manufactory."  Peoria  Fire  Ins. 
Co.  v.  Lewis,  18  111.,  553  (1857);  so,  as  to  a  steam  saw-mill.  Bigler  v. 
New  York  Central  Ins.  Co.,  20  Barb.,  635  (N.  Y.,  1855);  so,  as  to  a 
"grist-mill,"  especially  where  the  value  of  the  building  alone  is  only  one- 
third  of  the  indemnity  named;  and  where  the  insured,  unknown  to  the 
insurer,  also  held  a  policy  upon  his  * '  fixed  machinery ' '  it  created  double 
insurance  avoiding  the  policy  which  required  consent  for  additional  in- 
surance to  be  given  in  writing  by  the  insurer.  Shannon  v.  Gore  Ins.  Co., 
2  Up.  Can.  App.,  396   (1878).] 

A  sheriff 's  sale  upon  execution  against  the  owner  of  iron  works,  by  virtue 
of  which,  levy  was  made  upon  several  tracts  of  land  "with  all  and  singular 
the  buildings,  furnaces  and  other  improvements  thereon,  known  as  the 
Shawnee  Iron  Works, ' '  passes  to  the  vendee  a  railroad  used  in  connection 
with  the  furnaces  and  extending  therefrom  across  intermediate  lots  of 
other  owners  over  which  the  company  had  a  right  of  way  to  river  lots  of  the 
company,  where  coal  and  ore  were  usually  landed  for  the  use  of  the  fur- 
naces, both  extremities  of  the  railroad  being  situated  upon  the  land  levied 
upon;  and  this  though  the  word  "appurtenances"  was  omitted  from  the 
levy.  Wright  v.  Chestnut  Hill  Iron  Ore  Co.,  45  Penn.  St.,  475  (1863).  See, 
also,  as  to  the  word  "appurtenances,"  Ex  parte  Bentley,  2  M.  D.  &  DeG., 
591   (1842). 

[A  mortgage  of  the  land  of  a  street  railway  company,  together  with 
the  poles,  rails  and  wires,  covers  the  track  an<l  lines  of  an  electric  railway 
upon  the  city  streets.  Kirkpatrick  v.  Cornwall  Street  R'y  Co.,  2  Ont.  Law, 
113  (App.,  1901).] 

[A  sheriff's  deed  of  a  block  "together  with  all  the  buildings,  fixtures, 
machinery  and  other  appurtenances  thereunto  belonging  and  thereon  situ- 
ate," does  not  cover  a  pumping  station  situated  upon  another  tract  be- 
longing to  strangers,  and  connected  by  iron  pipes  with  a  sugar-mill  upon 
the  tract  conveyed,  and  necessary  to  supply  the  mill  witli  water,  the  pump- 
ing station  being  also  used  to  supply  the  city  with  water.     The  appurte- 

463 


•309  THE  LAW  OF  FIXTURES.  [CHAP.  IX, 

property.^  ■^  Thus  in  Farrar  v.  Stackpolr,  which  was  the  con- 
veyauoe  of  a  saw  mill. 

[*309]  *Witli  reference  to  the  nse  in  the  instrument  of  the 
words  "fixtures,"  "things  "xed  to  the  freehold,"  "fixed  ma- 
chinery," etc.,  as  has  heen  already  observed,  no  general  rule  can 
be  laid  down,  and  each  case  must  be  determined  by  the  general 
rules  of  interpretation  and  construction.^'* 

nances  were  restricted  by  the  deed  to  those  embraced  within  the  block 
conveyed.     Keystone  Iron  Co.  v.  Wilkie,  6  Kan.  App.,  654   (1897).] 

[A  lease  of  the  "Bell  House"  upon  lots  described  "with  all  the  ap- 
purtenances" did  not  cover  an  iron  kettle  in  an  iron  arch  on  other  lots 
across  an  alley,  which  the  lessee  had  used  for  heating  water  to  clean  the 
hotel.    Barrett  v.  Bell,  82  Mo.,  110  (1884).] 

13  Farrar  v.  Stackpole;  Teaff  v.  Hewitt  (supra).  [Delaware,  L.  &  "W. 
K.  E.  Co.  V.  Oxford  Iron  Co.,  36  N.  J.  Eq.,  452  (1883);  see,  also,  Wood  v. 
Whelen,  93  III.,  153,  169   (1879).] 

[A  mortgage,  by  a  corporation  chartered  for  the  purpose  of  erecting  an 
opera-house,  of  a  lot  upon  which  such  opera-house  is  being  erected,  '  *  and 
all  the  buildings  and  improvements  thereon,  or  to  be  erected  thereon, ' ' 
covers  all  of  the  furniture,  fixtures,  furnishings,  and  paraphernalia  neces- 
sary to  make  it  a  complete  opera-house.  Grosvenor  v.  Bethell,  93  Tenn., 
577,  586   (1894).] 

[In  directing  a  sale  to  satisfy  a  lien,  a  "mill"  comprehends  all  engines, 
boilers,  machinery,  tools,  etc.,  but  not  buildings,  nor  vehicles,  draft  ani- 
mals, etc.     Empire  Lumber  Co.  v.  Kiser,  91  Ga.,  643,  650'  (1893).] 

See,  however,  Hutchinson  v.  Kay,  23  Beav.,  413  (1857)  ;  s.  C,  3  Jur.  (N. 
S.),  652;  26  L.  J.  Ch.,  457;  5  W.  E.,  341,  where  it  was  held,  that  looms  in 
a  factory,  not  fixed,  but  merely  steadied  by  having  their  legs  set  into  iron 
cups  dropped  into  holes  in  the  pavement,  did  not  pass  by  a  mortgage  of 
the  mill  or  factory,  with  the  rights,  members  and  appurtenances  thereunto 
belonging,  "together  with  the  steam-engines,  boilers,  shafting,  piping, 
mill-gearing,  gasometers,  gas-pipes,  drums,  wheels,  and  all  and  singular 
other  the  machinery,  fixtures  and  effects  fixed  up  in  or  attached  or  belong- 
ing to  the  said  mill, ' '  etc. ;  nor  by  a  sale  of  the  mill  ' '  together  with  the 
weaving-shed,  steam-engine,  boiler,  etc.,  and  other  machinery  and  fixtures 
fixed  up  in  and  attached  and  belonging  to  the  said  mill,"  they  not  being 
fixtures  in  any  proper  sense  of  the  term,  and,  though  machinery,  not 
machinery  "belonging"  to  the  mill,  which  was  read  by  the  court  as  "be- 
longing essentially  to  the  mill." 

["Appurtenances"  as  used  in  conveyances  passes  nothing  which  is  not  a 
part  of  the  realty,  and  can  not  embrace  personal  property.  Ottumwa  Mill 
Co.  V.  Hawley,  44  Iowa,  57,  60  (1876).] 

14  See  ante,  chap.  1,  p.  *7,  and  note. 

Where  a  prior  mortgage  described  the  property  as  "all  of  the  stock  of 
goods  and  merchandise  now  in  the  store, ' '  and  in  a  subsequent  mortgage  it 

464 


CHAP.  IX.]        GRANTOR  AND  GRANTEE,  ETC. 


^309 


was  described  as  "all  of  the  stock  of  goods  and  merchandise  now  in  the 
store,  and  fixtures, ' '  both  mortgages  being  drawn  by  the  same  person,  held, 
that  the  former  mortgage  did  not  include  the  fixtures.  In  re  Eldridge,  4 
Nat.  Bank  Reg.,  498   (1870)  ;  s.  c,  2  Bissell,  362. 

[Where  the  word  ' '  furniture ' '  is  interlined  after  ' '  fixtures  "  in  a  mort- 
gage, it  is  evident  that  they  were  not  intended  to  have  the  same  meaning; 
otherwise  the  addition  would  be  superfluous.  Fore  v.  Hibbard,  63  Ala., 
410,  412    (1879).] 

The  words  ' '  fixtures  belonging  to  the  fulling-mill  and  carding-machine, ' ' 
in  a  contract  (written  by  one  not  a  lawyer)  for  the  sale  of  a  farm,  "to- 
gether with  all  the  fixtures  belonging  to  the  fulling-mill  and  carding- 
machine,  together  with  every  article  attached  to  the  freehold,"  it  being 
shown  by  extrinsic  evidence  that  the  words  "fulling-mill  and  carding- 
machine  ' '  were  used  to  designate  the  building  in  which  the  carding-machine 
in  question  and  the  fulling-mill  had  been  situated  and  used,  and  that  the 
former  had  been  prior  to  the  contract  removed  and  stored  in  the  grist-mill 
on  the  farm  without  its  place  being  supplied,  were  construed  as  meaning 
not  only  the  building,  but  also  the  carding-machine  itself,  and  other  ma- 
chinery that  had  been  used  in  the  carding-machine  and  fulling-mill  building 
and  belonging  there  when  in  place.  Martin  v.  Cope,  28  N.  Y.,  180  (1863) ; 
s.  c,  3  Abb.  Ct.  App.  Dec,  182. 

A  mortgage  of  a  silk-mill  with  all  the  steam-engines,  boilers,  steam-pipes, 
main  shafting,  mill-gearing,  mill-wright 's  work  and  other  machinery  and 
fixtures  whatsoever  being  or  which  should  thereafter  be  on  the  land  de- 
scribed in  the  mortgage  was  held,  as  against  a  second  mortgagee  not  to  be 
confined  to  machinery  necessary  for  giving  power  to  the  mill  as  being 
ejusdem  generis  with  the  specified  particulars,  but  to  include  silk-spinning- 
machines  attached  to  the  floor  simply  by  their  own  weight,  but  by  bolts  and 
nuts  and  iron  rods  fixed  to  the  mill-beams  overhead.  Haley  v.  Hammersley, 
3  DeG.  F.  &  J.,  587  (1861)  ;  s.  c,  30  L.  J.,  Ch.,  771;  4  L.  T.  (N.  S.),  269; 
7  Jur.   (N.  S.),  765;  9  W.  R.,  562. 

[Where  property  insured  was  a  "building,  including  gas,  steam  and 
water-pipes,  and  all  other  permanent  fixtures  contained  therein,"  held,  not 
to  include  counters,  shelving  and  office  fixtures.  The  words  "all  other 
permanent  fixtures ' '  are  used  in  connection  with  such  fixtures  as  gas,  steam 
and  water-pipes;  and  store  fixtures  are  not  of  the  same  class.  Banyer  v. 
Albany  Ins.  Co.,  85  App.  Div.,  122   (N.  Y.,  1903).] 

[A  mortgage,  after  describing  the  land  mortgaged,  had  the  following 
clause:  "And  all  personal  and  mixed  estate  of  which  the  said  party  of 
the  first  part  is  seized  or  possessed,  and  also  all  machinery,  boileis,  engines 
and  fixtures  of  every  description."  Said  Bird,  V.  C,  in  delivering  the 
opinion  of  the  court :  * '  This  clause  seems  to  disconnect  the  personal  prop- 
erty from  the  machinery.  It  also  seems  to  include  machinery  as  fixtures. 
The  inference  is  not  so  strong  as  it  would  have  been  had  the  word  'fix- 
tures' been  preceded  by  the  word  'other,'  but,  nevertheless,  a  distinction 
between  the  personal  and  fixed  property  is  clearly  drawn ;  and  the  associa- 
tion of  the  word  'machinery'  with  boilers,  engines  and  fixtures  leada 
30  '         46.') 


*309  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

Btrougly  to  the  conclusion  that  the  machinery  was  regarded  as  an  accession 
to  the  realty."  Atlantic  Trust  Co.  v.  Atlantic  City  Laundry  Co.,  64  N.  J. 
Eq.,  140,  145   (1902).] 

[A  mortgage  of  lands  and  buildings  and  nuicliiuery,  which  enumerates 
the  machinery,  some  of  which  is  undeniably  a  part  of  the  freehold,  and 
the  rest  not  necessarily  chattels,  and  tlie  indebtedness  is  secured  upon  the 
whole  property  without  division,  does  not  necessarily  make  the  machines 
chattels  although  the  property  is  referred  to  as  "lands  and  chattels." 
Eobiuson  v.  Cook,  6  Ont.,  590,  597   (1884).] 

A.  by  deed  of  mortgage  granted,  bargained,  etc.,  to  B.  (in  his  posses- 
sion then  being  by  a  previous  bargain  and  sale)  an  iron  foundry  and  two 
dwelling-houses,  etc.,  and  the  appurtenances  thereunto  belonging  "together 
u-ith  all  grates,  boilers,  belts  and  other  fixtures  in  and  about  the  said  two 
dwelling-houses  and  the  brew-houses  thereto  belonging ; ' '  and  all  houses, 
cottages,  edifices,  buildings,  commons,  etc.,  liberties,  privileges,  easements, 
advantages,  etc.,  to  the  said  foundry,  messuages,  and  lands  appertaining. 
Eeld,  that  the  maxim  expressio  unius  est  exclusio  alterius  applied,  and 
that  cranes,  presses,  stgam-engine  and  other  fixtures  in  the  foundry  used 
for  the  purpose  of  the  business  there  carried  on  and  valued  at  6001.  did 
not  pass,  though  they  would  have  passed  had  not  the  others  been  enumer- 
ated. Hare  v.  Horton,  5  B.  &  Ad.,  715  (1833).  [Be  Eureka  Mower  Co., 
93  Supr.  Ct.   (86  Hun),  309,  315   (N.  Y.,  1895).] 

[An  enumeration  of  certain  appurtenances  and  improvements  will  exclude 
others,  except  so  far  as,  by  the  terras  of  the  list  itself,  particular  articles 
can  be  made  to  be  included;  and  it  can  be  established  by  parol  that  certain 
other  articles  were  necessary  and  proper  to  give  completeness  to  one 
enumerated;  but  it  would  not  be  legitimate  to  extend  the  expression  "et 
cetera"  beyond  the  class  of  articles  in  special  connection  with  which  it 
was  used.     Bagley  v.  Rose  Hill  Sugar  Co.,  Ill  La.,  249   (1903).] 

[Where  a  mortgage,  in  enumerating  the  property  embraced,  described 
lands,  and  "also"  nmchinery,  it  is  inferred  that  it  does  not  cover  ma- 
chinery of  the  same  kind  not  specified.  Choate  v.  Kimball,  56  Ark.,  55,  62 
(1892).] 

[Where  a  grantor  of  a  hotel  reserves  the  carpets,  furniture,  and  pictures 
of  the  upper  rooms,  by  implication  gas-fixtures  and  screens  pass  by  the 
deed.     Fratt  v.  Whittier,  58  Cal.,  126,  133   (1881).] 

[Where,  immediately  after  a  sale  of  a  flourrng-mill,  a  question  having 
arisen  between  the  parties  as  to  whether  certain  articles  were  included,  it 
was  agreed  that  they  should  be  put  up  for  sale,  which  was  done.  Held, 
that  the  jury  had  a  right  to  infer  that  other  articles,  not  claimed  by  the 
vendor  as  not  being  embraced  by  the  sale  of  the  mill,  were  intended  to  be 
Bold  as  a  part  of  it.  Elizabethtown  Coal  Co.  v.  Elizabethtown  Milling  Co., 
13  Ky.  L.  R.,  96  (Super.,  1891).] 

[Where  a  grantor  of  a  house  took  back  a  mortgage  for  the  purchase 
price,  and  also  gave  a  schedule  of  the  personalty  in  the  house  which  formed 
a  part  of  the  contract  of  sale,  the  mortgage  covered  hand-painted  canvases 
or  tapestries  firmly  cemented  to  the  ceilings,  which  were  not  mentioned  in 

466 


CHAP,   IX.]  GRANTOR    AND    GRANTEE,    ETC.  *309 

the  schedule,  as  the  mortgage  covered  all  that  was  granted;  and  the 
tapestries  not  appearing  in  the  schedule,  showed  that  they  were  intended 
to  be  a  part  of  the  realty.    Cahu  v.  Hewsey,  29  N.  Y.  Supp.,  1107  (1894).] 

[A  deed  conveyed  certain  lots  with  the  buildings  thereon,  and  certain 
machinery  enumerated,  and  personal  property,  and  reserved  to  the  grantor 
"the  right  to  remove  from  said  premises  all  property  not  hereby  specially 
conveyed."  Held,  that  the  grantor  could  remove  all  trade  fixtures  not 
specified,  including  shafting  not  used  to  distribute  power  to  the  machines 
enumerated.     Kirch  v.  Davies,  55  Wis.,  287,  296  (1882).] 

[A  mortgage  of  premises  "together  with  all  and  singular  the  water- 
wheels  and  flumes,  outhouses,  buildings,  ways,  waters,  water-courses,  privi- 
leges, profits,  hereditaments  and  appurtenances  whatsoever  to  the  said 
land  and  premises  belonging"  will  not  cover  mill  machinery  although  ordi- 
narily it  would  be  covered  by  the  mortgage,  as  the  mortgagee  has  taken 
security  on  a  certain  kind  of  the  machinery  fixtures  only.  Great  Western 
E'y  Co.  V.  Bain,  15  Up.  Can.  C.  P.,  207,  227  (1865).] 

[A  mortgage  was  made  of  the  plant  of  a  glass  company  "with  all 
improvements,  extensions,  enlargements,  and  additions  thereto  now  or  here- 
after to  be  owned,  constructed  or  acquired  by  said  company,  and  all  the 
appurtenances,  machinery  and  appliances,  piers,  wharves,  tanks,  pipes, 
boilers,  sheds,  boiler  houses  and  structures  of  every  kind  and  description 
now  erected  and  constructed,  or  hereafter  to  be  erected  and  constructed 
on  said  lots  or  either  of  them.  And  also  all  the  property  real,  personal 
and  mixed  of  the  said  Maryland  Glass  Company  now  owned  by  said  com- 
pany, or  hereafter  acquired  by  it,  together  with  all  improvements  thereon, 
and  all  rights  and  appurtenances  appertaining  thereto. ' '  Held,  to  exclude 
merchandise  manufactured  for  sale,  and  to  include  only  the  personal  prop- 
erty in  some  way  appurtenant  to  the  fixed  structures.  As  the  instrument 
had  been  very  carefully  drawn,  it  would  have  specified  the  glassware  if  that 
had  been  the  intention.  Mallory  v.  Maryland  Glass  Co.,  131  Fed.,  Ill 
(U.  S.  C.  C,  Md.,  1904).] 

[Where  a  factory  is  advertised  for  sale,  the  mention  of  certain  im- 
movables therein  is  not  a  reservation  by  the  vendor  of  the  immovables  not 
referred  to ;  such  reservation  should  have  been  expressed.  Maginnis  v. 
Union  Oil  Co.,  47  La.  Ann.,  1489,  1497   (1895).] 

[Where  a  conveyance  was  made  of  a  lot  of  laud  "together  witli  all  the 
trees,  shrubbery,  fences,  fountain,  basin  and  pipes  connected  therewith, 
now  upon  said  lot;  also  all  steam-heating  apparatus  and  its  connections; 
all  chandeliers,  all  gas  and  water  fijctures,  all  window  shades  and  fixtures, 
and  all  window  screens  now  contained  in  the  house,"  the  grantor  coiitondod 
that  the  enumeration  of  certain  articles  indicated  an  intent  that  a  grate, 
etc.,  should  not  pass.  But  Devens,  J.,  in  giving  the  opinion  of  the  court, 
said:  "In  applying  the  well-known  maxim,  exprcssio  unius  est  exclusio 
alterius,  the  object  of  the  enuinoration  is  to  be  considered.  So  far  as  the 
inside  of  tho  house  is  concerned,  the  object  was  apparently  to  include 
things  which  were  mere  articles  of  furniture,  and  which  would  not  pass 
by  a  grant  of  the  realty,  like  chandeliers,  gas  fixtures,  window  shades  and 

4G7 


*30i)  THE  LAW  OF  FIXTURES.  [CIIAP.   IX, 

screens,  and  also  steam-heating  apparatus  ami  its  connections,  part  of 
which  latter  might  be  contended,  as  it  has  been  here  contended,  to  be 
personal  property.  From  such  an  enumeration  we  do  not  think  it  can  be 
inferred  that  other  articles,  which  as  between  grantor  and  grantee,  might 
be  treated  as  a  part  of  the  realty  should  be  held  otherwise."  Leonard  v. 
Stickney,  131  Mass.,  5-11,  5i3  (1881).  This  case  was  distinguished  from 
Haro  V.  Horton,  supra.'] 

[An  exception  of  "all  plants  in  the  fernery,  greenhouses,  and  forcing- 
houses,"  which  are  movables,  does  not  entitle  a  grantee  to  other  plants, 
not  enumerated,  which  are  not  partes  soli.  Nisbet  v.  Mitchell-Innes  (1880), 
17  Scot.  Law  Ecp.,  438.] 

[That  a  mortgage  covered  real  estate  and  "all  engines,  machines,  tools, 
appliances,  connections,  attachments,  and  contrivances  of  every  kind  now 
used  in  operating  the  glass  factory  on  said  premises,"  is  no  evidence  that 
the  articles  described  are  not  a  part  of  the  realty.  Morotock  Ins.  Co.  v. 
Eodefer,  92  Va.,  747,  753   (1896).] 

[Where  a  mortgage  of  a  leasehold  enumerated  certain  articles,  this  does 
not  exclude  fixtures  not  enumerated,  especially  where  the  articles  not 
enumerated  are  an  essential  part  of  the  security.  Southport  Banking  Co. 
V.  Thompson   (1887),  37  Ch.  D.,  64.] 

In  Alvord  Carriage  Man'f'g  Co.  v.  Gleason,  36  Conn.,  86  (1869),  a 
blower-pipe  conveying  air  from  a  blower  to  a  forge,  both  permanently 
located  in  their  places,  and  without  which  the  blower  would  be  useless,  was 
regarded  as  part  of  the  blower  and  passing  under  the  description  of  "fixed 
machinery "  in  a  conveyance. 

[The  word  "fixtures"  may  mean  a  chattel  which  is  a  part  of  another 
chattel  where  the  parties  have  so  used  the  word.  Thus,  where  a  chattel 
mortgage  was  given  of  an  elevator  "and  all  the  fixtures  thereto  belong- 
ing," the  word  "fixtures"  is  construed  to  cover  such  articles  as  would 
pass  under  a  mortgage  of  the  elevator  if  it  had  been  realty.  McGorrisk 
V.  Dwyer,  78  Iowa,  279,  281   (1889).] 

In  Metropolitan  Counties,  etc..  Society  v.  Brown,  26  Beav.,  454  (1859)  ; 
S.  C,  5  Jur.  (N.  S.),  378;  28  L.  J.,  Ch.,  581;  7  W.  E.,  303,  B.  mortgaged 
iron-works  and  rolling-mill  with  the  machinery,  etc.,  specified  in  a  schedule 
"and  all  engines,  machinery,  fixtures  and  things  which  might  thereafter  be 
fixed  and  fastened  in  or  upon  the  same  premises  whether  in  addition  to  or 
substitution  of  the  several  fixtures,  machinery,  articles  and  things  specified 
in  the  said  schedule."  Held,  that  the  words  "fixed  and  fastened"  must 
according  to  the  true  construction  of  the  deed  (using  the  word  "fixed"  in 
the  same  way  as  Wood,  V.  C,  did  in  Mather  v.  Fraser,  supra),  be  consid- 
ered as  governing  the  whole  sentence;  and  therefore  that  subsequent  addi- 
tions consisting  of  an  engine  for  turning  a  lathe,  a  steam-hammer  and 
anvil,  the  hammer  fastened  by  screws  upon  a  stone  foundation,  a  boiler 
secured  in  brick-work,  and  a  furnace  laid  upon  a  brick  foundation,  passed 
to  the  mortgagee.  The  anvil  passed  with  the  hammer  though  not  fixed  as  it 
formed  an  essential  part  of  the  machine  which  would  be  incomplete  with- 
out it.    But  cutters  and  the  bed-plate  not  fastened  to  the  ground  at  all  by 

468 


CHAP.   IX.]  GRANTOR    AND    GRANTEE,    ETC. 


^309 


any  process,  though  the  bed-plate  -svas  very  heavy,  straightening-plate  and 
metal  flooring  of  the  mill,  quite  loose,  did  not  pass. 

[A  mortgage  of  "all  the  plant  and  machinery  in  use  in  the  factory" 
does  not  cover  patterns  never  in  actual  use  in  the  factory  and  not  even 
in  the  factory  at  the  time  the  mortgage  was  made.  McCosh  v.  Barton,  2 
Ont.  Law,  77   (App.,  1901),  reversing  1  Ont.  Law,  229   (1901).] 

[A  debtor  gave  to  his  creditor  a  mortgage  of  land,  describing  it,  "with 
the    factory   buildings    standing   thereon,    with    the   water-wheel,    shafting, 
belting,   machinery,   tools  and  fixtures,   contained   in   said   buildings."     A 
surety  for  the  debt,  when  sued,  contended  that  he  was  partially  discharged 
from  liability,  because  the  creditor  did  not  record  the  mortgage  as  a  mort- 
gage  of    personal   property,    as    well    as    a    real    estate    mortgage,    which 
neglect  resulted  in  some  of  the  property  covered  by  the  mortgage  being 
taken  by  a  subsequent  chattel  mortgagee,  and  the  surety's  right  of  subro- 
gation thereto  was  lost.     Lord,  J.,  in  delivering  the  opinion  of  the  court, 
said :     ' '  There  is  no  word  used  in  this  description  which  may  not  of  itself, 
taken  alone,  describe  personal  estate.     But  in  the  connection  in  which  used, 
it  would  be  scarcely  less  than  absurd  to  say  that  the  word  'buildings'  was 
a   description    of   personal   chattels;    and   the   same   is   true    of    the   word 
'fixtures,'  which  are  the  first  and  last  words  used  in  the   description  of 
articles  claimed  to  be  personal  property.     Some  of  the  other  words  used 
may,   in   their   ordinary   signification   when   standing  alone,   be   descriptive 
of  personal  property ;  but  it  would  be  an  extraordinary  use  of  language  to 
speak  of  a  'factory  building  with  the  water-wheel'  as  personal  property. 
'Shafting,'  possibly,  and  'belting,'  'machinery,'  and  'tools,'  if  used  with- 
out reference  to  their  position,  might  convey  the  idea  that  they  were  chat- 
tels;  but  while,  taken  independently,  and  without  any  reference   to  their 
situation,  they  might  be  deemed  chattels,  yet  every  one  of  the  words  is  a 
word  which  may  properly  be  used  to  signify  a  part  of  the  realty.  *  *  »  * 
We  are  satisfied  that  the  parties  intended  to  convey,  and  did  convey,  only 
such  articles  as  were  a  part   of,   or  attached  to,   the  realty,  and  which, 
from  their  situation  and  use,  would  be  deemed  to  be,  as  between  grantor 
and  grantee,  connected  with  the  realty.    We  have  no  doubt  that  'shafting,' 
'belting,'  'machinery,'  and  'tools'  can  be  so  attached  to,  and  be  a  part 
of  the  realty,  when,  by  the  connection  in  which  they  are  used,  such  is 
shown  to  be  the  purpose  and  intention  of  the  parties.    We  have  no  descrip- 
tion of  the  articles  named,  nor  how  they  were  connected  with,  or  attached 
to  the  realty;  and,  in  the  absence  of  all  evidence  upon  that  subject,  and 
taking  into  view  the  instrument  in  which  they  are  used,  and  the  manner  in 
which  they  are  introduced  into  that  instrument,  we  think  that   the  whole 
instrument,  taken  tngother,  is  simply  a  conveyance  of  real  estate  with  all 
Buch   fixtures   as,   between   grantor  and   grantee,   might   pass   as   parcel   of 
the   realty;    that   it   neither   conveys   nor   purports   to   convey,   any   of  the 
instruments  which  are  used  by  the  hand,  and  which  are  not  in  any  sense 
connected  with   the  realty.    •    ♦    •    •    Tlicrc  was,  thorefore,  no  negligence 
on  the  part  of  the  plaintiff."     Allen  v.  Woodard,  125  Mass.,  400   (1878).] 
[A  chattel   mortgage  of  an   elevator  placed   upon   land  leased   from  a 

469 


*310  THE  LAW  OF  FIXTURES,  [cnAP.  VL. 

[*310]  *Assuniing  the  correctness  of  the  rule,  that,  if  a  man 
assicrns  his  mill  or  manufactory  and  all  its  appurtenances,  the 
fixtures  pass,  it  is  also  clear  that  the  deed  nu\y  express  that  they 
shall  not  pass.  Words  may  be  inserted  of  any  description  to  ex- 
[*311]  elude  *them,  or  they  may  be  the  subject  of  distinct  con- 
tract ;  and,  if  the  court  sees  plainly  that  by  a  conveyance  of  free- 
hold property,  or  an  assignment  of  leasehold  property,  as  it  may 
be,  it  was  not  intended  to  include  the  fixtures,  then  the  freehold 
or  leasehold  property  may  be  the  subject  of  one  contract  and 
the  fixtures  the  subject  of  another.^ 

railroad  company,  covers  a  track-scale  as  "fixtures,"  where  the  scale  was 
annexed  to  and  used  in  connection  with  the  elevator,  although  such  scale 
was  not  upon  the  leased  land,  but  upon  the  land  of  the  railroad  company 
under  a  license,  the  contest  being  between  the  purchaser  at  the  mortgagee's 
sale,  and  creditors  of  the  mortgagor,  the  railroad  company  making  no 
claim.     McGorrisk  v.  Dwyer,  78  Iowa,  279   (1889).] 

See,  also.  Beck  v.  Kebow,  1  P.  Wm.,  94  (1706),  ante,  p.  *299,  note; 
Mather  v.  Fraser,  2  K.  &  J.,  536  (1856);  s.  c,  2  Jur.  (N.  S.),  900. 
[Hathaway  v.  Orien  Ins.  Co.,  11  N.  Y.  Supp.,  413,  415  (1890)  ;  see  Bemis 
V.  First  Nat.  Bank,  63  Ark.,  625,  631   (1897).] 

1  Waterfall  v.  Penistone,  6  Ell.  &  Bl.,  876  (1856) ;  Begbie  v.  Fenwick,  L. 
E.,  8  Ch.  App.,  1075,  note  (1866);  s.  c,  24  L.  T.  (N.  S.),  58;  25  L.  T. 
(N.  S.),  441;  Fortman  v.  Goepper,  14  Ohio  St.,  558.(1863);  Folsom  v, 
Moore,  19  Me.,  252  (1841).  [Richards  v.  Gilbert,  116  Ga.,  382,  385 
(1902);  Tyson  v.  Post,  22  N.  Y.  Wkly.  Dig.,  492  (Supr.  Ct,  1885),  aff'd 
108  N.  Y.,  217.] 

It  was  accordingly  held  in  Begbie  v.  Fenwick,  where  S.  by  way  of  mort- 
gage demised  to  B.  all  and  singular  the  premises  comprised  in  certain 
indentures  of  lease  therein  specified  for  the  unexpired  residue  of  the 
respective  terms  except  the  last  ten  days  respectively,  and  by  the  second 
operative  part  assigned  all  steam-engines,  boilers,  machinery,  plant  and 
fixtures,  etc.,  upon  the  premises  and  not  being  in  the  nature  of  landlord's 
fixtures,  the  proviso  of  redemption  applying  to  both  operative  parts,  that 
the  trade  fixtures  did  not  pass  by  the  first  witnessing  part,  but  by  an 
entirely  separate  contract  and  assignment,  viz.,  the  second  operative  part, 
and  B.  not  having  registered  his  security  as  a  bill  of  sale  within  the  Bills 
of  Sale  Act,  it  was  void  as  against  a  subsequent  mortgagee,  F.,  whose 
security  had  been  registered.  See,  also,  Quinby  v.  Manhattan  Cloth  &  Paper 
Co.,  24  N.  J.  Eq.,  260  (1873);  Hawtry  v.  Butlin,  L.  R.,  8  Q.  B.,  290 
(1873);  Ex  parte  Daglish,  L.  E.,  8  Ch.  App.,  1072  (1873),  and  the  cases 
therein  cited;  also  Bills  of  Sale  Act  post. 

[Where  a  mortgage  of  real  estate,  after  describing  it  by  metes  and 
bounds,  contains  a  clause  mortgaging  the  machinery  thereon  specifically 
enumerating  the  samo,  and  stipulating  that  it  should  not  be  removed,  it 

470 


CHAP.  IX.]  GRANTOR   AND    GRANTEE,    ETC.       •  *311 

makes  the  machinery,  as  between  the  parties,  personal  property.  Binkley 
V.  Forkner,  117  Ind.,  176,  186   (1888).] 

[Where  a  mortgage  covered  a  lot  "together  with  all  the  machinery, 
&c., "  naming  certain  articles,  it  indicates  that  the  machinery  was  to  pass 
as  personal  property.     Padgett  v.  Cleveland,  33  S.  C,  339,  347   (1889).] 

In  Fortman  v.  Goepper,  F.,  in  selling  his  brewery  to  H.  &  B.,  conveyed 
the  real  estate  by  metes  and  bounds,  the  consideration  stated  being 
$16,000,  and  by  bill  of  sale  at  the  same  time  sold  and  transferred  among 
other  things  the  articles  in  controversy  for  $9,000,  and  took  back  a  real 
estate  mortgage,  describing  the  premises  as  in  the  deed,  to  secure  unpaid 
purchase  money.  H.  and  B.  subsequently  executed  a  chattel  mortgage  on 
the  property  included  in  the  bill  of  sale.  Held,  that  the  deed,  bill  of  sale 
and  mortgage  having  been  executed  at  the  same  time  and  as  parts  of  one 
transaction,  each  must  be  held  to  have  been  designed  by  the  parties  to 
perform  its  appropriate  office  in  consummating  the  sale,  that,  therefore, 
the  real  estate  mortgage  covered  no  more  property  than  was  included  in 
the  deed,  and  the  property  in  question  in  the  bill  of  sale  as  between  F. 
and  the  mortgagees  of  B.  was  personalty.  [See,  ante,  p.  *45.  Dewar  v. 
Mallory,  26  Gr.  Ch.,  618   (Ont.,  1879).] 

[^Vhere,  at  the  time  a  sale  of  a  brewery  was  made,  the  grantor  taking 
a  mortgage  for  unpaid  purchase  money,  the  grantor,  in  addition  to  a  deed 
for  the  land,  gave  a  bill  of  sale  of  the  steam-engine,  boiler,  shafting  and 
machinery  therein  in  order  that  the  grantee  might  remove  it  if  desired, 
such  articles  are  given  the  character  of  personal  property,  being  personal 
in  their  nature,  and  it  not  appearing  that  any  damage  to  them  or  to  the 
realty  will  be  occasioned  by  their  removal.  Zellcr  v.  Adam,  30  N.  J.  Eq., 
421   (1879).] 

[Where  a  mortgagor  of  real  estate  gave  a  chattel  mortgage  upon  the 
machinery  therein,  his  testimony  as  to  an  intention  to  make  such  machinery 
a  permanent  part  of  the  building  will  not  overcome  the  presumption  raised 
by  the  chattel  mortgage;  otherwise  it  would  create  a  presumption  that  he 
intended  to  perpetuate  a  fraud  upon  the  chattel  mortgagee.  Washington 
Nat.  Bank  v.  Smith,  15  Wash.,  160,  169   (1896).] 

[Where  a  grantee  gives  a  mortgage  to  secure  part  of  the  purchase 
money,  the  mortgage  covers  everytliing  that  passed  by  grant.  Laveuson 
V.  Standard  Soap  Co.,  80  Cal.,  245,  252  (1889)  ;  Langdon  v.  Buchanan,  62 
N.  H.,  657,  659   (1883).] 

[Where  a  mortgage  is  executed  not  only  as  a  real  estate  mortgage,  but 
also  as  a  chattel  mortgage,  and  does  not  refer  to  the  property  mortgaged 
as  a  "  plant, ' '  but  describes  land  as  land,  and  personalty  as  personalty, 
and  the  mortgage  is  invalid  as  a  chattel  mortgage  because  not  recorded, 
the  mortgagee  can  maintain  the  lien  of  his  mortgage  on  machines  only  by 
showing  that  they  have  become  real  estate.  Knickerbocker  Trust  Co.  v. 
Penn  Cordage  Co.,  62  N.  .J.  Eq.,  624,  642   (1901).] 

See,  however,  McRea  v.  Central  Natn'l  Bank,  50  How.  Pr.,  51  (1874), 
where,  however,  the  bill  of  sale  is  stated  by  the  court  to  have  been  "an 
after  thought  adopted     *     *     *     for  greater  caution."     [McRca  v.  Cen- 

471 


♦311  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

tral  Bank,  66  N.  Y.,  489,  500  (1876)  ;  sec,  also,  Solomon  v.  Staiger,  65  N. 
J.  Law,  617,  619  (1900) ;  Best  v.  Hardy,  123  N.  C,  226,  229  (1898).  Like- 
wise, giving  a  chattel  mortgage  upon  fixtures  for  the  purpose  of  insuring 
against  a  possible  contingency  that  they  might  not  be  covered  by  the  real 
estate  mortgage,  docs  not  change  their  character.  Studley  v.  Ann  Arbor 
Bank,  112  Mich.,  181,  185  (1897);  Miles  v.  McNaughton,  111  Mich.,  350, 
354  (1896);  McMillan  v.  Fish,  29  N.  J.  Eq.,  610,  611  (1878);  Fish  v. 
N.  Y.  Paper  Co.,  29  N.  J.  Eq.,  16,  20  (1878)  ;  Trowbridge  v.  Hayes,  45 
N.  Y.  Supp.,  635,  639  (1896) ;  Cooper  v.  Harvey,  16  N.  Y.  Supp.,  660,  663 
(1891);  Homestead  Land  Co.  v.  Becker,  96  Wis.,  206,  212  (1897);  Stevens 
V.  Barfoot,  13  Up.  Can.  App.,  366  (1886) ;  Sun  Assurance  Co.  v.  Taylor,  9 
Man.,  89,  98   (1893).] 

[Where,  for  greater  caution,  the  proviso  of  a  mortgage  mentions  the 
property  as  "lands  and  chattels,"  it  does  not  prevent  machines  from  pass- 
ing as  a  part  of  the  realty.     Kobinson  v.  Cook,  6  Ont.,  590,  598   (1884).] 

[A  separate  valuation  upon  a  building  and  upon  the  machinery  therein, 
in  an  insurance  policy,  is  not  an  agreement  that  the  machinery  is  not  to 
be  considered  as  real  property.  Havens  v,  Germania  Ins.  Co.,  123  Mo., 
403,  421   (1894).] 

So,  in  Folsom  v.  Moore,  the  plaintiff  having  sold  and  the  vendee  having 
acquired  a  store  as  personalty  by  a  title  distinct  from  the  realty,  the 
plaintiff  was  not  allowed  his  claim  to  it  as  realty  by  virtue  of  the  fore- 
closure of  his  mortgage  on  the  realty  for  unpaid  purchase  money. 

[Where  the  three  stockholders  of  a  corporation  enter  into  a  private 
agreement,  under  which  the  corporation  deeds  the  real  estate  to  one,  and 
he  leases  the  same  to  the  two  others,  with  a  provision  that  "the  machinery 
in  said  building,  and  the  machinery  in  the  cracker  ovens,  belongs  to  the 
said  lessees  absolutely  with  full  privilege  of  removal,"  such  machinery 
becomes  and  remains  personal  property  as  between  the  lessor  and  all  par- 
ties tracing  title  from  the  lessees.  Keefe  v.  Furlong,  96  Wis.,  219,  222 
(1897).] 

[The  owner  of  chattels,  by  taking  a  subsequent  mortgage  of  the  land 
and  the  chattels,  may  affirm  the  Bale  of  the  chattel,  and  invest  the  land- 
owner with  the  legal  title  thereto ;  yet  it  does  not  follow  that  they  are 
thereby  made  a  part  of  the  realty,  and  subject  to  a  homestead  claim. 
Harkey  v.  Cain,  69  Tex.,  146,   150   (1887).] 

[Where  a  deed  of  trust  covers  land  and  certain  articles  described  as 
personal  property,  and  the  trustee  advertises  that  he  will  sell  them  sepa- 
rately, and  so  sells  them,  the  purchaser  of  the  realty  can  not  claim  the 
articles  as  a  part  thereof.     Elliott  v.  Wright,  30  Mo.  App.,  217   (1888).] 

[Where  a  sheriff  sold  land  and  a  factory  thereon  separately,  advertising 
the  latter  as  personal  property,  a  creditor,  offering  to  redeem,  is  estopped 
from  insisting  that  all  of  the  property  is  real;  for  if  the  factory  was  real 
estate,  the  sale  was  invalid;  if  personal  property,  there  can  be  no  redemp- 
tion ;  hence,  an  offer  to  redeem  affirms  the  sale  as  real  property.  Horn  v. 
Indianapolis  Nat.  Bank,  125  Ind.,  381,  392    (1890).] 

See,  also,  generally,  Trappes  v.  Harter,  3  Tyrwh.,  603   (1833) ;  s.  C,  2 

472 


CHAP.  IX.]  DEVISES  OP  FIXTURES.  ^'312 

*III.    When  Fixtures  Pass  by  Devise  or  Bequest.     [*312] 

It  may  be  stated  as  a  general  rule  frhat  by  a  devise  of  land 
the  fixtures  thereto  annexed  will  pass  with  the  land  to  the 
devisee,  if  there  be  nothing  to  indicate  a  contrary  intention.^ 
And  the  rule  is  the  same  whether  annexed  prior  or  subsequent 
to  the  date  of  the  devise,  or  whether  actually  or  constructively 

Cr.  &  M.,  153;  3  L.  J.  (N.  S.),  Exch.,  241;  and  the  cases  of  Minshall  v. 
Lloyd,  2  SI.  &  W.,  450,  456  (1837)  ;  Wilde  v.  Waters,  16  C.  B.,  637,  647 
(1855)  ;  Mather  v.  Fraser,  2  Kay  &  J.,  536  (1856)  ;  Walmsley  v.  Milne,  7 
C.  B.  (N.  S.),  133,  134  (1859)  ;  Culwick  v.  Swindell,  L.  E.,  3  Eq.,  249 
(1866)  ;  Ex  parte  Barclay,  5  DeG.  M.  &  G.,  413  (1855)  ;  Ex  parte  Bentley, 
2  M.  D,  &  DeG.,  597  (1842),  where  Trappes  v.  Harter  is  doubted,  and 
explained. 

1  Ex  parte  Reynal,  2  M.  D.  &  DeG.,  443,  461  (1841) ;  Colegrave  v.  Dias 
Santos,  2  B,  &  C,  76,  80  (1823),  See,  also,  Wood  v.  Gaynon,  Ambl.,  395 
(1761);  Johnston  v,  Dobie,  Mor.  Diet.,  5443  (1783),  cited  ante,  p.  *304. 
[See  Burdick  v.  Chesebrough,  94  App.  Div.,  532,  538  (N.  Y.,  1904).  For 
the  same  rule  as  to  emblements,  see,  ante,  p.  *255.] 

[Mirrors  fastened  by  an  iron  clamp  to  masonry,  the  frame  resting  upon 
mantels  of  a  like  design  and  of  the  same  wood,  pass  as  a  part  of  the 
house;  but  otherwise  as  to  a  mirror  resting  upon  a  bracket  and  not  con- 
nected in  any  other  manner  than  pictures  are.  Lockwood  v.  Lockwood,  3 
Redf.,  330,  335   (N.  Y.  Surr.,  1878).] 

Where  a  testator  after  certain  specific  bequests  gave  the  residue  of  his 
estate,  both  real  and  personal,  to  his  executors  in  trust,  and  directed  thcni 
to  continue  his  manufacturing  establishments  in  operation  during  the  lives 
of  certain  beneficiaries,  and  distribute  the  income,  and  on  the  termination 
of  such  lives  to  sell  the  same  and  distribute  the  proceeds  in  execution  of  the 
trusts.  Held,  that  the  machinery  in  the  factory  which  would  otherwise 
have  been  regarded  as  personal  assets  under  2  Rev.  Stat.,  83,  §  6  (provid- 
ing that  things  annexed  to  the  freeliold  or  to  any  building  for  the  ])uri>ose 
of  trade  or  manufacture,  and  not  fixed  into  the  wall  of  a  house  so  as  to  be 
essential  to  its  support,  are  to  be  deemed  assets,  and  go  to  the  executor  or 
administrator,  as  part  of  the  personal  estate),  was  converted  into  realty 
during  the  time  it  should  be  so  used  by  the  executors  in  the  building,  and 
could  not  bo  applied  to  the  payment  of  debts  other  than  those  connected 
with  the  factories,  until  after  the  specific  legacies  had  been  exhausted. 
Downing  v.  Marshall,  1  Abb.  Ct.  App.  Dec,  525   (1863). 

[A  devise  of  a  permanent  building  carries  the  land  under  it  and  neces- 
sary for  its  use.  Richmond  v.  Slate,  5  Ind.,  3.34,  3.37  (18.14);  Toms  v. 
Williams,  41  Mich.,  .5.12.  5.19  (1879);  Rogers  v.  Smith,  4  Pa.  St.,  93,  101 
(1846);  Whitney  v.  Olney,  3  Mason,  280,  281   (U.  S.  C.  C,  R.  I.,  1823).] 

473 


*313  THE  L.\.W  OP  FIXTURES.  [cHAP.  IX. 

annexed  to  the  freeliokl.-  The  rule  on  this  subject  seems  to 
be  that  the  devisee  takes  the  hind  in  the  same  condition  in 
which  it  woukl  have  descended  to  the  heir,  and  hence  will  be 
entitled  to  everything  that  would  be  regarded  as  a  fixture  de- 
scending with  the  land  as  between  heir  and  executor.3 
[*313]  *With  regard  to  testamentary  dispositions  of  fixtures 
separately  from  the  land,  the  rule  has  been  laid  down,  that 
"where  a  testator  has  a  devisable  interest  in  a  house,  etc.,  he 
may  devise  the  incidents  of  the  house  and  things  that  are  an- 
nexed to  the  house  either  together  with,  or  in  separation  from 
the  freehold.  On  the  other  hand,  if  the  estate  itself  is  not  de- 
visable, the  things  which  are  annexed  to  it  are  not  in  general 
devisable;  and  therefore  a  tenant  for  life  or  in  tail  cannot 
devise  the  doors,  windows  or  wainscot  of  a  house,  nor  personal 
chattels  that  are  affixed  to  the  house  and  which  form  a  part  of 
it ;  but  such  a  devise  is  void.  But  even  in  this  case  the  testator 
may  devise  away  such  fixtures  as  are  severable  from  the  free- 
hold, and  which  would  go  to  his  personal  representative;  be- 
cause these  are  not  incident  to  the  inheritance. ' '  ■*  And  in  like 
manner,  tenant's  or  trade  fixtures,  removable  by  the  tenant  as 
against  the  landlord  during  his  term,  may,  of  course,  be  disposed 

zFerard  on  Fixt.,  246. 

As  to  what  are  fixtures  by  construction,  see  ante,  p.  *33. 

[A  devisee  of  land  will  not  take  trees  severed  from  the  soil  by  an  extraor- 
dinary gale.  Ee  Ainslie  (1885),  30  Ch.  D.,  485,  overruling  (1884)  28  Ch. 
D.,  89,  92.] 

3  Ferard  on  Fixt.,  247,  Mr.  Ferard  does  not  regard  this  point,  however, 
as  free  from  difficulty,  and  refers  to  the  case  of  emblements  which  go  with 
the  land  to  the  devisee,  but  not  to  the  heir.  The  case  of  emblements,  how- 
ever, seems  in  this  respect  so  entirely  anomalous  and  exceptional  as  to  fur- 
nish no  argument  against  the  rule  above  stated. 

[A  claim  by  a  legatee  against  a  devisee  falls  within  the  principles  of 
decisions  between  executor  and  heir,  where  the  executor  is  least  favored. 
Tapestry  cut  to  cover  spaces  in  the  walls,  and  nailed  to  battens  nailed  to 
brick-work,  not  removable  without  injury  to  the  tapestry  and  the  walls, 
passes  to  a  devisee  of  the  house.    Norton  v.  Dashwood  [1896],  2  Ch.,  497.] 

4 Ferard  on  Fixt.,  245;  Swinb.,  pt.  3,  §  6.  [See  Be  DeFalbe  [1901],  1 
Ch.,  523.] 

[Where  a  life  tenant  attempts  to  devise  land  in  fee,  this  will  not  give 
the  devisee  any  claim  for  betterments  made  by  the  life  tenant.  Schimpf  v. 
Bhodewald,  62^  Neb.,  105,  113  (1901).] 

474 


CHAP.  IX.  j  DEVISES  OF  FIXTURES.  *314 

of  by  the  tenant  by  last  will  and  testament.^  The  intention  of 
the  testator  to  make  a  testamentary  disposition  of  fixtures  sepa- 
rately from  the  freehold  must,  however,  in  order  to  be  effectual, 
be  evidenced  by  the  use  of  some  appropriate  term  or  description ; 
and  any  terms  clearly  indicating  such  intention  would  probably 
be  held  sufficient. 

With  reference  to  the  term  "furniture,"  the  better  opinion 
seems  to  be  that  by  the  use  thereof,  articles  of  furniture,  in 
the  ordinary  sense  of  that  term,  will  pass  though  temporarily 
fixed  to  the  house  for  convenience  of  use,  they  being,  as  was 
observed  by  the  Vice  Chancellor  in  Paton  v.  Sheppard,*^  not 
the  less  furniture  because  so  fixed.  The  term  is,  however,  a 
*very  general  and  indefinite  one,  and  there  is  some  con-  [*314] 
fusion  among  the  authorities  on  the  question.'^     By  the  use, 

5  See  Johnston  v.  Swann,  3  Mad.,  457  (1st  Am.  Ed.,  p.  236)  (1818), 
where  fixtures  in  a  leasehold  house,  which  the  testator  had  a  right  to 
remove  (devises  of  land  and  bequests  relating  to  interests  in  real  property 
being  in  certain  cases  void  under  the  statute),  were  considered  as  mere 
personal  chattels  forming  a  part  of  the  residue  and  passing  under  a 
bequest  of  the  residue  of  personal  estate  for  charitable  purposes. 

6  10  Sim.,  186  (1839).    See,  also.  Beck  v.  Eebow,  1  P.  Wms.,  94  (1706). 
T  In  Kelley  v.  Powlet,  Ambl.,  605  (1763)  ;  s.  c,  1  Dick.,  559,  the  Master 

of  the  Kclls  said:  "The  word  'household  furniture'  has  as  general  a 
meaning  as  possible,  it  is  incapable  of  a  definition.  It  is  capable  only 
of  a  description.  It  comprises  everything  that  contributes  to  the  use  or 
convenience  of  the  householder,  or  ornament  of  the  house."  See,  also,  Cole 
V.  Fitzgerald,  1  Sim.  &  Stu.,  189  (1823);  s»  c,  3  Kuss.,  301.  It  would 
Beem  that  to  hold  that  by  the  use  of  the  term  "furniture"  (in  this  larger 
sense)  all  the  articles  comprised  within  the  above  description  pass  whether 
fixed  or  not,  tends  to  obliterate  all  distinction  between  furniture  and 
domestic  and  ornamental  fixtures  so  far  as  this  question  is  concerned. 
There  are,  however,  cases  which  seem  to  make  almost  as  broad  an  applica- 
tion of  the  term.  Thus  in  Paton  v.  Shcppard  (sitiira),  under  a  bequest  of 
"household  furniture,"  stoves,  blinds,  bell-pulls  and  other  articles  gen- 
erally considered  as  tenant's  fixtures,  belonging  to  the  testator  in  a  lease- 
hold house  occupied  by  him  were  held  to  pass.  The  Vice  Chancellor  ob- 
served in  this  case  that  "they  were  fixed  to  the  house  in  this  sense,  namely, 
that  it  was  at  his  option  to  remove  them,  if  he  thought  proper  so  to  do; 
but  they  are  not  the  less  furniture  because  they  were  fixed  to  the  house. ' ' 
See,  also,  Pinder  v.  Pinder,  18  W.  E.,  309   (1870). 

There  seems  to  be  a  distinction  as  to  whether  the  furniture  is  annexed  by 
the  owner  of  the  fee,  or  to  a  leasehold  estate,  though  it  seems  diflicult  to 
see  how  what  is  furniture  in  one  case  is  not  equally  so  in  the  other.    Com- 

•175 


*315  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

however,  of  the  terms  "fixed  furniture,"  or  some  other  terms  of 
equivalent  import,  the  meaning  of  the  testator  that  such  articles 
should  pass  may  be  rendered  sufficiently  certain.^ 

In  Slanning  v.  Style"  the  testator  bequeathod  all  his  "house- 
[*31oJ  *hold  goods  and  implements  of  household,"  which  words 
were  held  to  include  a  clock  in  the  house,  "if  not  fixed  thereto;" 
and  from  these  last  words  the  inference  has  been  drawn  that  if 
articles  of  this  sort  are  fixed,  they  will  not  pass  under  a  bequest 
of  household  goods.^*^  But,  unless  the  annexation  is  permanent 
or  habitual,  so  as  to  take  away  the  character  of  being  a  chattel, 
no  reason  is  seen  for  any  such  distinction.  The  question,  how- 
ever, in  all  such  cases  is  one  upon  which  the  intention  of  the 
testator  has  a  controlling  influence.^^ 

pare  with  Paton  v.  Sheppard  (supra),  Allen  v.  Allen,  Mosely,  112  (1728), 
where  it  was  held,  that  under  tne  term  "furniture"  in  a  bequest  to  the 
defendant,  the  defendant  was  not  entitled  to  marble  slabs,  or  chimney- 
pieces,  or  anything  fixed  to  the  freehold  or  the  testator's  own  estate.  And 
it  was  stated  that  glasses  in  panels  were  to  be  considered  as  part  of  the 
freehold,  but  not  if  screwed  in,  and  that  there  was  a  great  difference  be- 
tween the  heir  and  devisee,  or  the  executor  and  devisee,  and  a  landlord  and 
tenant. 

[As  a  general  rule  a  bequest  of  "furniture"  by  a  lessee  will  not  pass 
tenant 's  fixtures,  such  as  mantel-pieces,  stoves,  kitchen  dressers,  shelves, 
etc.,  though  some  fixtures  might  be  included.  Finney  v.  Grice  (1878),  10 
Cb.  D.,  13,  15.] 

8  See  Birch  v.  Dawson,  6  C.  &  P.,  658  (1834);  s.  c,  2  Ad.  &  E.,  37. 
[See,  ante,  p.  *7.] 

In  the  report  of  this  case  at  nisi  prius  (6  C.  &  P.,  658)  a  doubt  was 
expressed  by  Littledale,  J.,  whether  a  carpet  tacked  to  a  floor  was  fixed 
furniture,  "because  carpets,  though  tacked,  are  often  taken  up  and  put 
down  again."    See,  also.  Beck  v.  Kebow,  1  P.  Wms.,  94  (1706). 

9  3  P.  Wms.,  334   (1734). 

See,  also,  Stewart  v.  Earl  of  Bute,  3  Ves.,  212  (1796)  ;  11  Ves.,  657 
(1813),  where  a  testator  gave  all  his  wagon-ways,  etc.,  and  all  implements, 
utensils  and  things  used  for  the  working  of  his  collieries  and  which  might 
be  deemed  as  of  the  nature  of  personal  estate,  to  be  held  with  the  collieries. 
Held,  that  under  this  bequest,  inter  alia,  fire-engines  passed.  But  the  ques- 
tion does  not  seem  to  have  been  considered  with  reference  to  the  law  of 
fixtures. 

loForard  on  Fixt.,  249. 

11  Thus  in  Wood  v.  Gaynon,  Ambl.,  395  (1761),  where  a  testator  devised 
his  copyhold  estate,  which  consisted  of  a  brew-house  and  malt-house,  let  to 
a  third  party,  together  with  the  plant,  both  at  the  time  of  making  the 
will  and  at  the  decease  of  the  testator,  it  was  held,  that  the  plant  passed 

476 


CHAP.   IX.]  DEVISES   OF   FIXTURES.  *315 

with  the  brew-house,  although  there  was  a  bequest  of  the  personal  estate 
to  the  complainant,  it  appearing  to  the  court  from  the  fact  that  the  whole 
was  in  lease  as  aforesaid,  and  that  without  the  plant  the  walls  would  be  of 
no  use,  that  it  was  the  intention  of  the  testator  to  devise  the  plant. 

So,  in  Pinder  v.  Pinder,  18  W.  K.,  309  (1870),  where  a  testator  by  his 
will  gave  all  his  real  and  leasehold  estates,  and  also  all  his  stock  in  trade, 
money  at  bank,  good  will,  book  debts  and  effects  belonging  to  his  business 
of  an  earthenware  manufacturer  to  his  son,  and  charged  his  real  and 
leasehold  estates  with  the  payment  of  legacies  to  his  other  children,  which 
estates  were  sold  for  the  payment  thereof  and  bought  in  by  the  son,  and 
the  question  was  whether  the  fixtures  on  the  property  sold  were  bought  by 
the  son,  or  whether  he  acquired  them  under  the  word  "effects;"  or  in 
other  words,  whether  they  passed  under  the  devise  of  the  real  and  leasehold 
estates  or  under  the  word  * '  effects, ' '  it  was  held,  that,  it  being  the  tes- 
tator 's  obvious  intention  that  the  son  should  continue  the  business,  and 
also  that  his  other  children  should  have  an  ample  provision,  as  he  could  not 
carry  on  the  business  without  these  fixtures,  they  were  included  in  the 
words  "effects  belonging  to  the  business,"  and  that  the  words  "stock  in 
trade,  good  will,  book  debts  and  effects"  must  be  construed  in  their 
largest  possible  sense,  passing  everything  in  any  way  relating  to  the 
business. 

[A  gift  of  "all  the  furniture  and  other  personal  effects  belonging  to 
me,  and  which  at  the  date  of  my  death  are  at  the  Roebuck  Hotel,"  does 
not  cover  the  fixtures  which  the  testator,  as  tenant,  had  a  right  to  remove. 
Be  Seton-Smith  [1902],  1  Ch.,  717,  720.] 

[Under  a  bequest  of  "furniture  and  articles  of  household  use  and  orna- 
ment" an  altar  stone  not  physically  attached,  and  relics  placed  in  a  cavity 
thereunder,  do  not  pass,  both  altar  and  relics  forming  part  of  a  chapel  as 
used  for  religious  purposes,  although  the  altar  stone,  by  ecclesiastical 
custom,  could  only  be  used  while  the  chapel  was  licensed,  and  the  license 
for  mass  had  been  withdrawn.  Petre  v.  Ferrers  (1891),  Weekly  Notes, 
171.] 

It  seems,  also,  that  by  the  devise  of  a  West  India  plantation  by  name 
not  adding  "cattle,  stock,  implements  and  utensils,"  the  cattle,  stock, 
implements  and  utensils  upon  it  will  pass.  Lushington  v.  Sewell,  1  Sim., 
435,  451,  479  (1827).  See,  also,  Johnston  v.  Dobie,  Mor.  Diet.,  5443 
(1782). 

[Where  a  testator  devises  unimproved  land,  it  passes  land  upon  which 
tenants  have  erected  buildings  which  are  the  personal  property  of  the 
tenants.     Coles  v.  Coles,  37  Atl.,  1025  (N.  J.,  1897).] 


477 


•316  THE  lAW  OF  FIXTURES.  [CHAP.  IX. 

[*316]  *IV.    Of  the  Relation  Sustained  by  Recording  Acts 

TO  THE  Law  of  Fixtures. 

The  subject  considered  at  the  end  of  the  second  section  some- 
times becominc:  a  material  inquiry  in  considering  questions  aris- 
ing under  statutes  relating  to  the  recording  of  instruments  of 
conveyance,  the  effect  of  such  recording  acts  upon  the  law  of 
fixtures  will  be  next  considered. 

It  may  be  stated  as  a  general  rule  that  fixtures  placed  upon 
demised  premises  by  a  tenant  and  which  are  removable  by  him 
during  his  term  as  against  his  landlord,  annexations  made 
upon  the  land  of  another  by  one  under  an  agreement  reserv- 
ing the  right  of  removal,  and  also  fixtures  sold  by  the  owner 
of  the  land  to  a  third  person,  but  not  actually  severed,  do  not 
pass  by  a  subsequent  conveyance  or  mortgage  of  the  land  to 
one  having  notice  of  such  right.i     The  doctrine  in  relation  to 

1  Coleman  v.  Lewis,  27  Penn.  St.,  291  (1856) ;  Davis  v.  Buff  urn,  51  Me., 
160  (1863)  ;  Wilgus  v.  Gettings,  21  Iowa,  177  (1866)  ;  Sowden  v.  Craig,  26 
Iowa,  156  (1868)  ;  Morris  v.  French,  106  Mass.,  326  (1871)  ;  Hensley  v. 
Brodie,  16  Ark.,  511  (1855);  Mitchell  v.  Freedley,  10  Penn.  St.,  198 
(1849);  Hunt  v.  Bay  State  Iron  Co.,  97  Mass.,  279  (1867);  Haven  v. 
Emery,  33  N.  H.,  66  (1856)  ;  Pierce  v.  Emery,  32  N.  H.,  484  (1856).  See, 
also,  Oliver  v.  Vernon,  6  Mod.,  170  (1704)  ;  King  v.  Wilcomb,  7  Barb.,  263 
(1849)  ;  Dame  v.  Dame,  38  N.  H.,  429  (1859)  ;  Crippen  v.  Morrison,  13 
Mich.,  23  (1864)  ;  Yater  v.  Mullen,  23  Ind.,  562  (1864)  ;  s.  c,  24  Ind.,  277. 
[Wood  V.  Holly  Mfg.  Co.,  100  Ala.,  326  (1893)  ;  Harmon  v.  Kline,  52  Ark., 
251,  252  (1889)  ;  Mantooth  v.  Burke,  35  Ark.,  540,  546  (1880)  ;  Brodrick 
V.  Kilpatrick,  82  Fed.,  138,  139  (U.  S.  C.  C,  Cal.,  1897);  Isenhoot  v. 
Chamberlain,  59  Cal.,  630,  639;  Sword  v.  Low,  122  111.,  487  (1887); 
Malott  V.  Price,  109  Ind.,  22,  25  (1886);  Fischer  v.  Johnson,  106  Iowa, 
181,  184  (1898);  Jones  v.  Cooley,  106  Iowa,  165,  167  (1898);  Western 
Union  Tel.  Co.  v.  Burlington  &  Southwestern  E 'y  Co.,  11  Fed.,  1  (U.  S. 
C.  C,  Iowa,  1882)  ;  Walker  v.  Schindel,  58  Md.,  360,  364  (1882)  ;  Hand- 
forth  V.  Jackson,  150  Mass.,  149,  154  (1889)  ;  Southbridge  Sav.  Bank  v. 
Exeter  Mach.  Works,  127  Mass.,  542,  545  (1879)  ;  Manwaring  v.  Jenison, 
61  Mich.,  117,  139  (1886)  ;  Eead  v.  Horner,  90  Mich.,  152  (1892)  ;  Nicker- 
son  V.  Wells-Stone  Co.,  71  Minn.,  230,  238  (1898)  ;  Warner  v.  Kenning,  25 
Minn.,  173,  174  (1878)  ;  McDonnell  v.  Burns,  83  Fed.,  866  (U.  S.  C.  C.  A., 
Mo.,  1897);  Priestly  v.  Johnson,  67  Mo.,  632  (1878);  Omaha  B.  &  T.  E'y 
Co.  'v.  Whitney,  99  N.  W.,  525  (Neb.,  1904)  ;  Moore  v.  Moran,  64  Neb., 
84,  87  (1902);  Holt  County  Bank  v.  Tootle,  25  Neb.,  408,  419  (1889); 
Di'etrichs  v.  Lincoln  &  N.  W.  E.  E.  Co.,  13  Neb.,  43   (1882) ;   Simons  v. 

478 


CHAP,   IX.]  REGISTRY   ACTS.  *316 

Pierce,  16  Ohio  St.,  215  (1865);  New  Chester  Water  Co.  v.  Holly  Mfg. 
Co.,  53  Fed.,  19  (U.  S.  C.  C.  A.,  Pa.,  1892),  aff'g  Holly  Mfg.  Co.  v.  New 
Chester  Water  Co.,  48  Fed.,  879  (U.  S.  C.  C,  Pa.,  1891);  Dominick  v. 
Farr,  22  S.  C,  585  (1885)  ;  Hertzberg  v.  Witte,  22  Tex.  Civ.  App.,  320, 
323  (1899)  ;  Austral  Otis  Co,  v,  Andrew  Kerr  Co.,  16  Vict.,  744  (1890) ; 
see,  also,  Wallace  v.  Dodd,  136  Cal.,  210  (1902) ;  Tomlinson  v.  Ayres,  117 
Cal.,  568  (1897)  ;  Berger  v.  Hoerner,  36  III.  App.,  360,  362  (1889)  ;  Green 
Bay  Lumber  Co,  v.  Ireland,  77  Iowa,  636  (1889)  ;  Brooks  v.  Prescott,  114 
Mass.,  392,  397  (1874);  Warner  v.  Kenning,  25  Minn.,  173  (1878);  Duke 
V.  Shackleford,  56  Miss.,  552   (1879).] 

[A  cooking  range  placed  in  a  hotel  by  one  under  contract  of  purchase, 
does  not  pass  to  the  grantor  of  the  hotel,  upon  his  resuming  possession,  he 
having  notice  that  the  seller  of  the  range  had  reserved  title.  John  Van 
Eange  Co.  v,  Allen,  7  So.,  499  (Miss.,  1890).] 

[See  Meffert  v.  Dyer,  81  S.  W.,  643  (Mo.  App.,  1904),  that  a  lessee  is 
not  entitled  to  corn  standing  upon  the  premises  which  the  lessor,  at  the 
time  he  leases  the  premises,  informs  him  belongs  to  a  prior  lessee.] 

[A  mortgage  covers  fixtures  upon  land  although  the  mortgagee  has 
notice  of  a  previous  sale  thereof  which,  being  verbal,  was  void.  Brown  v. 
Eoland,  92  Tex.,  54,  57   (1898).] 

In  McCraeken  v.  Hall,  7  Ind.,  30  (1855),  it  was  held  that  a  pump  put  in 
a  well  by  one  as  tenant  of  a  dowress,  himself  being  the  reversioner  of  the 
estate,  did  not  pass  by  a  conveyance  by  the  tenant  of  the  reversion  and  by 
the  dowress  of  her  estate.  See  Wiltshear  v,  Cottrell,  1  Ell.  &  Bl.,  674 
(1853). 

A  chattel  mortgage  of  machinery  and  other  things  which  as  between 
landlord  and  tenant  would  bo  trade  fixtures,  will  give  the  mortgagee  a 
valid  lien  as  against  a  subsequent  assignee  in  bankruptcy,  who  has  sold 
the  equity  of  redemption  in  the  real  estate  to  which  such  fixtures  are 
annexed  for  a  sum  equal  to  the  value  of  such  fixtures,  and  who  must  be 
considered  to  have  taken  with  notice,  although  as  against  the  prior  mort- 
gagee of  the  realty  the  fixtures  would  be  realty,  where  it  appears  that  such 
prior  mortgagee  makes  no  claim  to  the  fixtures.  Ex  parte  Ames,  1  Lowell  'a 
Dec,  561  (1871);  s.  c,  7  Nat,  Bank  Reg.,  230. 

An  assignee  or  grantee  for  the  benefit  of  creditors,  also,  who  simply 
succeeds  to  the  rights  of  his  grantor  in  the  premises,  is  bound  by  a  prior 
chattel  mortgage  of  things  affixed  to  the  freehold.  Griffin  v.  Allen,  Supr, 
Ct.  of  Buffalo,  2  Clint.  N,  Y,  Dig.,  1415,  pi.  47  (1857). 

[Where  a  landlord  re-enters  for  non-payment  of  rent,  and,  under  a 
provision  in  the  lease,  takes  possession  of  the  tenant's  improvements  ho 
can  not  claim  an  engine  sold  to  the  tenant  but  not  paid  for,  the  seller 
reserving  title,  as  the  landlord  is  not  a  purchaser  for  value,  and  takes  no 
better  title  than  his  tenant  had.  Webster  v.  Bates  Machine  Co.,  64  Neb., 
306,  308   (1902).] 

[Where  the  owner  of  a  mill  has  acquired  his  interest  by  the  assignment 
of  a  written  instrument,  which  is  only  assignable  on  the  assumption  that 
it  relates  to   a  chattel  interest,  and   the  instrument  recognizes  the   right 

479 


•317  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

[*317]  *laudlord  nnd  teuaut  is  generally  stated,  without  refer- 
ence to  the  question  of  notice,  to  be,  that  a  conveyance  by  the 

of  the  assignor  to  treat  the  mill  as  personalty,  he  is  chargeable  with  notice 
of  the  nature  aiul  quality  of  the  interest  assigned,  and  that  it  was  liable 
to  be  encumbered  by  a  chattel  mortgage.  Malott  v.  Price,  109  Ind.,  22,  25 
(1886).] 

[The  lien  of  a  judgment  or  attaching  creditor  is  not  superior  to  the 
claims  of  third  parties  to  fixtures.  Gates  Iron  Works  v.  Cohen,  7  Colo. 
App.,  341  (1S96)  ;  Ee  Worland,  92  Fed.,  893,  895  (U.  S.  Dist.  Ct.,  Iowa, 
1899)  ;  Cleveland  Works  v.  Lang,  67  N.  H.,  348,  364  (1892)  ;  Brown  v. 
Sage,  11  Gr.  Ch.,  239,  244   (Ont.,  1865).] 

[A  mechanics'  lien  will  not  attach  to  fixtures  belonging  to  third  parties. 
Jordan  v.  Myres,  126  Cal.,  565  (1899);  State  v.  O'Neil  Lumber  Co.,  77 
Mo.  App.,  538  (1898) ;  see,  also,  West  Coast  Lumber  Co.  v.  Apfield,  86 
Cal.,  335   (1890).] 

[A  purchaser  of  land  acquires  no  title  to  a  fixture  thereon  as  against 
the  seller  of  such  fixture  who  has  brought  suit  to  foreclose  his  lien.  San 
Antonio  Brew.  Ass'n  v.  Arctic  Mach.  Co.,  81  Tex.,  99   (1891).] 

[Where  a  grantee  of  land  knew  that  the  grantor  had  purchased  a  steam- 
engine  upon  the  premises,  on  credit,  that  the  grantor  was  financially 
embarrassed,  and  the  grantee  made  no  farther  investigation  than  to  ex- 
amine the  record  of  chattel  mortgages,  held,  that  the  grantee  could  not 
retain  the  engine  as  against  the  seller  thereof  who  had  reserved  title,  and 
who  did  not  know  the  manner  in  which  it  was  attached  to  the  realty. 
Ingersoll  v.  Barnes,  47  Mich.,  104   (1881).] 

[Where,  in  Louisiana,  by  fiction  of  law,  mules  placed  upon  a  planta- 
tion become  "immovable  by  destination,"  this  will  not  defeat  a  vendor's 
privilege  upon  the  mules.  Hibernia  Nat.  Bank  v.  Sarah  Planting  Co.,  107 
La.,  650   (1902).] 

[A  privilege  for  supplies  furnished  for  a  growing  crop  does  not  need 
to  be  registered  to  be  valid  as  against  a  purchaser  of  the  land  without 
notice.     Weil  v.  Kent,  52  La.  Ann.,  2139,  2144   (1900).] 

[Where  a  grantee  of  land,  knowing  of  a  previous  sale  of  scales  thereon, 
can  not  claim  them,  he  does  not  acquire  any  greater  right  thereto  by  a 
subsequent  conveyance  to  him  of  the  wife's  inchoate  interest  in  the  land. 
Keeney  v.  Whitlock,  7  Ind.  App.,  160   (1893).] 

[Culm  mined  from  its  original  place  by  a  lessee,  and  piled  upon  the 
land,  is  the  personal  propej-ty  of  the  lessee,  and  does  not  pass  to  a  grantee 
of  the  lessor.  Lehigh  Coal  Co.  v.  Wilkes-Barre  &  E.  E.  K.  Co.,  8  Luz.  Leg. 
Keg.  E.,  540,  547   (1897)  ;   187  Pa.  St.,  145,  149    (1898).] 

[An  unpaid  seller  retaining  title  to  ice-machines  which  are  attached  to 
realty  upon  which  is  a  mortgage  covering  all  machinery  "to  be  affixed 
thereto, ' '  has  a  lien  prior  to  the  holders  of  bonds  which  are  bought  sub- 
sequent to  the  contract  of  sale  with  notice  of  the  conditions,  although  the 
conditional  seller  had  constructive  notice  of  th©  terms  of  the  mortgage. 
Central  Trust  Co.  v.  Arctic  Ice  Co.,  77  M<1.,  202   (1893).] 

480 


CHAP.   IX.]  REGISTRY   ACTS.  *317 

landlord  of  the  demised  premises  will  not  convey  to  the  grantee 
the  tenant's  fixtures.^  In  this  relation,  however,  the  possession 
of  the  tenant  is  in  itself  sufficient  to  put  the  purchaser  upon 
inquiry  and  he  is  bound  at  his  peril  to  ascertain  the  nature 
and  extent  of  the  tenant's  rights,  so  that  the  doctrine  of  bona 
fide  purchase  without  notice  can  rarely  in  this  relation  become 
material  to  the  determination  of  the  question.^ 

1  See  Raymond  v.  White,  7  Cow.,  319  (1827).  See,  also,  Davis  v.  Buffum, 
51  Me.,  160  (1S63),  [Union  Terminal  Co.  v.  Wilmar  &  S.  F.  R'y  Co.,  116 
Iowa,  392,  396  (1902);  see,  also,  Bartlett  v.  Haviland,  92  Mich.,  552,  555 
(1892);  Sherrick  v.  Cotter,  28  Wash.,  25  (1902);  Atkinson  v.  Noad,  14 
Low.  Can.,  159  (1863) ;  but  see  Smyth  v.  Stoddard,  105  111.  App.,  510,  515 
(1903).] 

[A  tenant  upon  land  which  has  been  condemned  for  the  right  of  way  of 
a  railroad,  has  the  same  right  to  remove  buildings  and  trade  fixtures  which 
he  could  have  removed  as  against  his  landlord.  Schreiber  v.  Chicago  & 
Evanston  R.  E.  Co.,  115  III.,  340,  346   (1885).] 

[The  fact  that  a  grantee  of  the  land  subsequently  receives  an  assign- 
ment of  the  interest  of  a  lessee  in  a  building  thereon,  does  not  merge  the 
two  interests  to  the  extent  of  making  the  building  a  part  of  the  realty, 
the  building  having  originally  been  personal  property,  and  continuing  to 
be  so  treated  by  the  landowner,  and  excepted  in  all  conveyances  of  the 
land.  Sweet  v.  Henry,  175  N.  Y.,  268  (1903),  reversing  66  App.  Div., 
383,  390   (1901).] 

[See  Sowles  v.  Eaymer,  110  Mich.,  189  (1896),  as  to  parties  being 
estopped  by  their  acts  from  removing  a  saw-mill  after  foreclosure  sale  of 
the  land.] 

See,  however,  as  to  erections  made  by  a  firm  upon  the  land  of  one  of  the 
partners,  passing  to  a  subsequent  mortgagee.  Ex  parte  Scarth,  1  Mont. 
Dea.  &  DeG.,  240  (1840).  See,  also,  Trappes  v.  Harter,  and  the  cases 
explaining  it,  cited  ante,  pp.  *276,  *283,  in  this  chapter. 

[Where  the  mortgagor  is  a  member  of  a  firm  which  has  the  right  to 
remove  buildings,  while  his  possession  might  not  be  notice  to  the  mort- 
gagee, the  possession  of  the  other  partner  would  be.  Kerr  v.  Kingsbury,  39 
Mich.,  150,  156  (1878).] 

2  See  Wing  v.  Gray,  36  Vt.,  267  (1863);  Dubois  v.  Kelly,  10  Barb.,  508 
(1851).  See,  however.  Prince  v.  Case,  10  Conn.,  375  (1835);  Powers  v. 
Dennison,  30  Vt.,  752  (1858),  where  the  mere  fact  that  the  licensee  occu- 
pied the  building,  the  possession  of  the  land  generally  being  in  the  owner, 
is  considered  "only  notice  that  a  person  is  in  possession,  and  of  nothing 
more;  it  does  not  prove  that  ho  claimed  title,  or  that  he  was  any  other 
than  a  tenant  of  tlie  owner  of  the  land."  See,  also,  Landon  v.  Piatt,  34 
Comm.,  517   (1S6S);  Slack  v.  Gay,  22  La.  Ann.,  387   (1870). 

[The  following  cases  sustain  the  rule  that  the  possession  of  a  tenant  is 
notice  of  his   right   to   fixtures:      Security   Loan  Co.   v.   Williametto   Mills 
31  481 


*317  THE  lAW  OF  FIXTFRES.  [CHAP.   IX. 

Co.,  99  Cal.,  636,  641  (1893);  Koyce  v.  Latshaw,  15  Colo.  App.,  420,  425 
(1900)  ;  Polle  v.  Eouse,  73  Miss.,  713,  717  (1896)  ;  Friedlander  v.  Eyder, 
30  Nob.,  783,  788  (1890);  Van  Kouron  v.  Central  E.  E.  Co.  of  N.  J.,  38 
N.  J.  Law,  165,  167  (1875)  ;  Sweet  v.  Henry,  175  N.  Y.,  268,  277  (1903), 
reversing  66  App.  Div.,  383  (1901);  Allen  v.  Gates,  73  Vt.,  222,  228 
(1900) ;  Close  v.  Belmont,  22  Gr.  Ch,,  317  (Ont.,  1875)  ;  see,  also.  Best  v. 
Stonebaek,  39  Kan.,  170,  172  (1888).  Bnt  see  Smyth  v.  Stoddard,  203 
111.,  424  (1903);  Brown  v.  Eoland,  11  Tex.  Civ.  App.,  648,  655  (1895); 
Shelton  v.  Ficklin,  32  Gratt.,  727,  737   (Va.,  1880).] 

[There  is  no  presumption  that  a  purchaser  of  land  had  no  notice  of  the 
right  of  a  tenant  thereon  to  remove  buildings.  A  claim  to  improvements 
on  the  ground  that  the  vendee  paid  full  value  and  was  without  notice  of 
the  right  to  remove  improvements,  must  be  pleaded  and  proved.  Isenhoot 
V.  Chamberlain,  59  Cal.,  630,  639   (1881).] 

[The  mere  presence  of  a  lessee  of  a  building  at  a  foreclosure  sale  thereof 
does  not  affect  his  rights  as  to  fixtures  therein  which  are  removable  as 
between  vendor  and  vendee.  L'Hote  v.  Fulham,  51  La.  Ann.,  780,  784 
(1899).] 

[Where  a  tenant  takes  a  deed  to  the  premises  for  the  purpose  of  security, 
afterwards  reconveying  to  his  landlord,  who  conveys  to  another,  the  last 
grantee  does  not  acquire  any  right  to  structures  which  are  trade  fixtures, 
the  tenant  paying  rent  during  his  entire  term,  and  his  possession  being 
notice  of  his  rights.  Security  Loan  Co.  v.  William'ette  Mills  Co.,  99  Cal., 
636,  641   (1893).] 

[A  growing  crop  of  vegetables  raised  by  a  tenant  in  possession  is  per- 
sonal property;  and  the  grantor  of  the  land  is,  therefore,  not  estopped  by 
the  covenants  of  title  in  his  warranty  deed  from  purchasing  such  crops 
from  the  tenant.     Simanek  v.  Nemetz,  97  N.  W.,  508   (Wis.,  1903).] 

[See  New  Chester  Water  Co.  v.  Holly  Mfg.  Co.,  53  Fed.,  19  (U.  S.  C.  C. 
A.,  Pa.,  1892),  aff'g  Holly  Mfg.  Co.  v.  New  Chester  Water  Co.,  48  Fed., 
879  (U.  S.  C.  C,  Pa.,  1891),  where  the  seller  reserved  a  lien  upon  pumping 
engines,  which  remained  in  charge  of  his  paid  agent.] 

[Where  the  owner  of  buildings  does  not  own  the  land  upon  which  they 
are  built,  his  property  is  personal  in  character,  and  goes  to  the  personal 
representative.  If  such  personal  representative,  while  in  possession  of  the 
buildings,  and  in  her  personal  capacity,  purchases  the  land  upon  which 
the  buildings  stand,  such  buildings  become  a  part  of  the  realty  as  to 
anyone  without  notice  dealing  with  the  landowner;  and  the  proceedings 
in  the  probate  court  are  not  constructive  notice.  Seibel  v.  Bath,  5  Wyo., 
409,  426   (1895).] 

[Where  a  grantee  conveys  land  to  one  without  actual  notice  of  a  reserva- 
tion by  the  grantor  of  fixtures  thereon,  the  sub-grantee  is  entitled  to  such 
fixtures  as  are  a  part  of  the  realty;  and  the  fact  that  the  grantor  remains 
in  possession  does  not  require  such  sub-grantee  to  make  inquiry  of  him 
as  to  his  interest,  as  his  deed  is  conclusive  upon  that  subject  so  far  as  the 
sub-grantee  is  concerned.  VanKueren  v.  Central  E.  E.  of  N,  J.,  38  N.  J. 
Law,  165,  167   (1875).] 

482 


CHAP.   IX.]  REGISTRY   ACTS.  *318 

In  cases,  however,  of  annexations  to  the  land  of  another  by 
his  consent  under  an  agreement  express  or  implied  that  the 
property  annexed  shall  remain  the  personal  property  of  the 
person  who  annexed  it,  such  person  being  in  possession  neither 
of  the  land  nor  the  annexation  thereto,  it  often  becomes  mate- 
rial. In  such  a  case  the  article  annexed  is,  as  between  the 
immediate  parties  to  such  agreement,  unquestionably  mere 
personalty.3  And  by  the  courts  in  several  States  it  is  held 
that  such  annexation  retains  its  character  of  personalty  as 
against  third  persons  purchasing  or  taking  a  mortgage  upon 
the  land  upon  which  it  stands,  lona  fide  and  without  notice 
of  such  agreement;  that  it  does  not  pass  with  the  land  to, 
and  may  be  removed  by  the  party  annexing  it  as  against 
*such  bona  fide  purchaser  or  mortgagee.^    It  is,  however,   [*318] 

3  See,  however,  the  limitation  to  the  rule  stated  ante,  chap.  1,  p.  *23. 

4Kussell  V.  Eichards,  10  Me.,  429  (1833)  ;  s.  C,  11  Id.,  371;  Hilborne  v. 
Brown,  12  Id.,  162  (1835);  Tapley  v.  Smith,  18  Id.,  12  (1840);  Ford  v. 
Cobb,  20  N.  Y.,  344  (1859);  Godard  v.  Gould,  14  Barb.,  662  (1853). 
[Adams  Mach.  Co.  v.  Interstate  Loan  Ass'n,  119  Ala.,  97  (1898)  ;  Eichards 
V.  Gilbert,  116  Ga.,  382,  385  (1902)  ;  Peaks  v.  Hutchinson,  96  Me.,  530 
(1902);  Duntz  v.  Granger  Brew.  Co.,  83  N.  Y.  Supp.,  957,  959  (1903); 
Kerby  v.  Clapp,  15  App.  Div.,  37,  39  (N.  Y.,  1897);  Case  v.  L'Oeble,  84 
Fed.,  582,  585  (U.  S.  C.  C,  Pa.,  1897) ;  Deal  v.  Smart,  1  Tex.  Ct.  App., 
Civ.,  §  1080  (1881);  Leonard  v.  Willard,  23  Que.,  C.  S.,  482  (1902);  see, 
also,  Butler  v.  Adler-Goldman  Co.,  62  Ark.,  445,  450  (1896);  Atlantic 
Trust  Co.  V.  Atlantic  City  Laundry  Co.,  64  N.  J.  Eq.,  140,  147  (1902); 
Hirsch  v.  Graves  Elevator  Co.,  53  N.  Y.  Supp.,  664   (1898).] 

In  Ford  v.  Cobb,  salt-kettles  were  bought  by  the  owner  of  land  and  mort- 
gaged to  the  seller  as  personalty,  the  mortgage  reciting  the  sale  and  that 
the  kettles  were  to  be  set  up  in  the  salt-blocks  of  the  owner  of  the  land  and 
that  the  mortgagee  was  to  have  a  right  to  retake  possession  on  default  of 
payment,  which  mortgage  was  promptly  filed  according  to  statute.  The 
kettles  were  set  up  in  brick  arches  in  such  a  manner  that  they  could  not  be 
removed  without  displacing  a  portion  of  the  brick  at  inconsiderable  ex- 
pense, but  the  course  of  manufacture  required  them  to  be  thus  removed  and 
reset  annually.  The  owner  of  tlie  land  subsequently  conveyed  the  land  to 
the  plaintiflF,  who  purchased  and  took  Ins  conveyance  without  notice  of  the 
claim  of  the  mortgagee,  other  than  the  constructive  notice  by  such  filing 
of  the  mortgage.  Held,  that  the  kettles  continued  to  be  personalty  and 
did  not  pass  by  the  conveyance  of  the  land.  Sec,  also,  Mott  v.  Palmer,  1 
N.  Y.,  564  (1848);  IToiisloy  v.  P.rnili(',  16  Ark.,  511  (1855);  Cripp<>"  v. 
Morrison,  13  Mich.,  34  (1864);  Sheldon  v.  Edwards,  35  N.  Y.,  279  (1806). 
[Duffus  V.  Howard  Furnace  Co.,  8  App.  Div.,  567  (1896),  reversing  37  N. 
Y.  Supp.,  10  (1895).] 

483 


•318  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

laiil  down  as  a  liinitaliou  111)011  this  rule  liiat  wliclhor  an  agree- 
niont  shall  preserve  the  character  of  personalty  in  things  so 
atlixod  to  the  freehold  as  that  but  for  snoli  agreement  they 
-svould  become  part  of  the  realty,  depends  upon  their  essential 
character,  and  the  modi'  in  which  they  are  annexed,  e.  g., 
whether  they  can  be  removed  without  serious  damage  to  the 
f i-eehold,  or  substantially  destroying  their  own  qualities  or  value ; 
in  other  words,  the  limitation  is  where  the  subject  or  mode  of 
annexation  is  such  that  the  attributes  of  personal  property  can- 
not be  predicated  of  the  thing  in  controversy.^ 

In  Mott  V.  Palmer,  the  grantor  covenanted  that  he  was  the  "lawful 
owner  of  the  premises  granted,  and  seized  of  a  good  and  indefeasible  estate 
of  inheritance  therein  clear  of  all  incumbrance."  There  was  on  the  land 
at  the  time  of  the  execution  of  the  deed  a  quantity  of  rails  erected  into  a 
fence  by  the  owner  of  adjoining  land  under  an  agreement  with  the  grantor 
to  inclose  and  occupy  temporarily  as  a  tenant,  with  leave  to  remove  the 
rails  whenever  he  saw  fit  to  do  so.  It  does  not  appear  that  the  tenant  was 
in  the  occupation  of  the  land  at  the  time  of  the  execution  of  the  deed. 
Held,  that  the  fence  being  within  the  description  of  the  thing  granted, 
and  a  part  of  that  which  the  deed  purported  to  convey  (though,  in  fact, 
the  personal  property  of  a  third  person),  an  action  was  maintainable  for 
a  breach  of  the  covenant  of  seizin. 

[Where  a  lot  with  the  buildings  thereon  was  conveyed  with  a  special 
warranty,  the  removal  of  a  house  by  a  tenant  under  a  prior  agreement 
with  the  grantor,  is  a  breach  of  the  covenant.  West  v.  Stewart,  7  Pa.  St., 
122   (1847).     [See  Atkinson  v.  Noad,  14  Low.  Can.,  159    (1863).] 

[Where  a  machine  which  is  a  part  of  real  estate  conveyed  by  warranty 
deed,  is  an  infringement  of  a  patent,  the  claim  of  the  patentee  is  an 
incumbrance  which  constitutes  a  breach  of  the  covenant  against  incum- 
brances. Cream  City  Mirror  Plate  Co.  v.  Swedish  B.  &  L.  A.,  74  111.  App., 
362,  365   (1897).] 

[The  removal  of  shelves,  counters,  etc,  by  a  former  lessee  having  a 
right  thereto,  is  a  breach  of  a  covenant  in  a  lease.  Cameron  v.  Tarratt,  1 
Up.  Can.  Q.  B.,  312.] 

5  See  ante,  chap.  1,  p.  *23;  chap.  3,  p.  *68,  and  notes.  [Baldwin  v. 
Young,  47  La.  Ann.,  1466  (1895);  Carlin  v.  Gordy,  32  La.  Ann.,  1285 
(1880)  ;  Lansing  Iron  Works  v.  Walker,  91  Mich.,  409  (1892)  ;  Henkle  v. 
Dillon, '15  Oreg.,  610,  616  (1888);  Mundine  v.  Pauls,  28  Tex.  Civ.  App., 
46  (1902);  Austral  Otis  Co.  v.  Kerr,  16  Vict.,  744  (1890);  see,  also, 
Poison  V.  Degeer,  12  Ont.,  275   (1886).] 

[A  hay-scale,   easily  removed   from   the  walled   pit   in   which  it  is   sus- 
pended, does  not  pass  under  a  mortgage  of  the  land  as  against  an  unpaid 
seller.     Garven  v.  Hogue,  14  Wkly.  Cin.  Law  Bui.,  175   (C.  C,  1885).] 
[Pumps,  tanks,  etc.,  in  a  brewery,  where  the  seller  has  reserved  title 

484 


CHAP.  IX.]  REGISTRY  ACTS.  *319 

*The  rule  above  laid  clown  that  an  agreement  to  eon-  [*319] 
sider  a  fixture  a  chattel,  which  is  binding  as  between  the  parties 
thereto,  is  also  equally  binding  as  against  subsequent  hona  fide 
purchasers  or  mortgagees  without  notice,  of  the  land  upon 
which  it  is  situated,  has,  however,  been  often  disapproved;  and 
the  sounder  rule  and  one  more  in  accordance  with  the  policy 
of  the  recording  laws  of  this  country,  is  to  require  actual  sev- 
erance or  notice  of  a  binding  agreement  to  sever  in  order  to 
deprive  the  purchaser  or  a  creditor  levying  upon  the  land  and 
fixtures  of  the  right  to  the  fixtures  or  appurtenances  to  the 

until  paid,  are  not  covered  by  a  mortgage  of  the  real  estate  although  such 
machinery  is  connected  by  pipes,  and  its  removal  would  necessitate  open- 
ings being  made  in  the  side  of  the  building.  Duntz  v.  Granger  Brew.  Co., 
83  N.  Y.  Supp.,  957   (1903).] 

[See  Lyon  v.  London  C'y  Bank  [1903],  2  K.  B.,  135,  where  chairs 
screwed  to  the  floor  were  held  not  to  pass  under  a  mortgage  of  a  hippo- 
drome.] 

In  TifEt  V.  Horton,  53  N.  Y.,  377,  384  (1873),  an  engine  and  boiler  were 
not  considered  to  come  within  this  limitation.  In  this  case  plaintiffs  sold 
to  B.  an  engine  and  boiler  to  be  erected  in  an  elevator  owned  by  B.;  a 
chattel  mortgage  was  executed  by  B.  on  the  property,  before  delivery 
thereof,  to  secure  unpaid  purchase  money,  which  provided  that  the  engine 
and  boiler  should  be  and  remain  personal  property  until  the  notes  men- 
tioned in  it  were  paid,  notwithstanding  the  manner  in  which  it  should  be 
placed  in  the  elevator,  and  authorized  the  plaintiffs  on  breach  of  condition 
to  re-take  and  carry  away  the  engine  and  boiler.  They  were  placed  on  a 
foundation  made  for  them,  and  an  engine-house  afterwards  built  over  them, 
80  that  they  could  not  be  removed  without  some  injury  to  the  walls  built 
up  about  tliem,  but  they  had  not  become  a  part  of  the  building,  nor  would 
their  removal  take  away  or  destroy  anything  essential  to  the  support  of  the 
main  building  or  other  part  of  the  real  estate  to  which  they  were  attached. 
Upon  the  foreclosure  of  a  mortgage  upon  the  promises  prior  to  their 
annexation,  defendant  became  purchaser,  and  on  demand  of  the  plaintiff 
for  the  engine  and  boiler  after  default  made,  action  was  brought  for  their 
conversion.  Held,  that  defendant  acquired  no  lien  on  the  engine  and 
boiler  by  his  mortgage,  and  that  plaintiff  could  recover. 

See,  however,  Fryatt  v.  Sullivan  Co.,  5  Hill,  116  (1843);  s.  C,  7  Id., 
529;  Voorhees  v.  McCinnis,  48  N.  Y.,  278,  287  (1872);  Frankland  v. 
Moulton,   5  Wis.,   1    (1850). 

[See  Case  Mfg.  Co.  v.  Oarvon,  45  Ohio  St.,  289  (1887),  modifying 
Garven  v.  Hogue,  14  Wkly.  Cin.  Law  Bui.,  175  (C.  C,  1885),  whore  a  dis- 
tinction is  made  between  motive  power  and  machinery,  and  holding  that 
the  latter  does  not  pass  to  a  mortgagee  of  the  land  without  notice.] 

485 


*319  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

freehold.^     And  according  to  the  better  opinion,  the  record  or 
liliug  of  a  c4iattel  mortgage  being  constructive  notice  only  of 

iFortmaii  v.  Goepper,  14  Ohio  St.,  565  (1S63),  per  White,  J.;  Brennan 
V.  Whitakor,  15  Ohio  St.,  446  (1864);  Powers  v.  Dennison,  30  Vt.,  752 
(1858)  ;  Daveuport  v.  Shants,  43  Vt.,  546  (1871)  ;  Hunt  v.  Bay  State  Iron 
Co.,  97  JMass.,  279  (1867);  Haven  v.  Emery,  33  N.  H.,  66,  69  (1856); 
Bringholff  v.  Munzenmaier,  20  Iowa,  513  (1866);  2  Smith's  Lead.  Gas., 
*  259;  Id.,  7th  Am.  Ed.,  p.  221;  Fryatt  v.  Sullivan  Co.,  5  Hill,  116  (1843)  ; 
Trull  V.  Fuller,  28  Me.,  545  (1848),  where  a  creditor  levied  upon  the  mill 
and  machinery  as  realty;  Prince  v.  Case,  10  Conn.,  375  (1835);  Landon  v. 
Piatt,  34  Conn.,  517  (1868).  See,  also,  Dostal  v.  McCadden,  35  Iowa,  318 
(1872);  Pierce  v.  George,  108  Mass.,  78  (1871);  Bratton  v.  Clawson,  2 
Strobh.  Law,  478  (1848);  s.  C,  3  Id.,  127;  Thropp's  Appeal,  70  Penn.  St., 
395  (1872).  [Cunningham  v.  Cureton,  96  Ga.,  489,  492  (1895);  Smyth  v. 
Stoddard,  203  111.,  424  (1903) ;  Fifield  v.  Farmers  Nat.  Bank,  148  111.,  163 
(1893);  Fisher  v.  Patterson,  197  111.,  414,  417  (1902),  aff 'g  99  111.  App., 
70  (1900)  ;  Simpson  Brick  Press  Co.  v.  Wormley,  61  IIJ.  App.,  460,  463 
(1895);  Bass  Foundry  Works  v.  Gallentine,  99  Ind.,  525,  528  (1884); 
Thomson  v.  Smith,  111  Iowa,  718,  720  (1900) ;  Fletcher  v.  Kelly,  88  Iowa, 
475,  487  (1893)  ;  Stillman  v.  Flenniken,  58  Iowa,  450  (1882)  ;  Kowand  v. 
Anderson,  33  Kan.,  264,  268  (1885)  ;  Wentworth  v.  Woods  Co.,  163  Mass., 
28,  32  (1895);  Kidgeway  Stove  Co.  v.  Way,  141  Mass.,  557  (1886);  South- 
bridge  Sav.  Bank  v.  Stevens  Tool  Co.,  130  Mass.,  547  (1881)  ;  Smith  Paper 
Co.  V.  Servin,  130  Mass.,  511,  516  (1881);  Southbridge  Sav.  Bank  v. 
Exeter  Mach.  Works,  127  Mass.,  542,  545  (1879);  Tuck  v.  Olds,  29  Fed., 
738  (U.  S.  C.  C,  Mich.,  1886);  Watson  v.  Alberts,  120  Mich.,  508,  509 
(1899)  ;  Wickes  v.  Hill,  115  Mich.,  333,  339  (1897) ;  Knowlton  v.  Johnson, 
37  Mich.,  47  (1877) ;  Hazlehurst  Lumber  Co.  v.  Fay,  18  So.,  485  (Miss., 
1895);  Moore  v.  Moran,  64  Neb.,  84,  88  (1902);  Carroll  v,  McCullough, 
63  N.  H.,  95,  96  (1884)  ;  Keeler  v.  Keeler,  31  N.  J.  Eq.,  181,  190  (1879)  ; 
Lacrustine  Fertilizer  Co.  v.  Lake  Guano  Co.,  82  N.  Y.,  476,  485  (1880) ; 
Jermyn  v.  Hunter,  93  App.  Div.,  175  (N.  Y.,  1904);  Case  Mfg.  Co.  v. 
Garven,  45  Ohio  St.,  289,  302  (1887),  aff 'g  Garven  v.  Hogue,  14  Wkly. 
Cin.  Law  Bui.,  175  (C.  C,  1885)  ;  Muir  v.  Jones,  23  Ore.,  332,  337  (1892)  ; 
Landigan  v.  Mayer,  32  Ore.,  245,  250  (1898)  ;  Schmaltz  v.  York  Mfg.  Co., 
204  Pa.  St.,  1  (1902)  ;  Brown  v.  Roland,  11  Tex.  Civ.  App.,  648,  653 
(1895);  Shelton  v.  Ficklin,  32  Gratt.,  727  (Va.,  1880);  McDonald  v. 
Weeks,  8  Gr.  Ch.,  297  (Ont.,  1880);  Goldie  v.  Hewson,  35  N.  Brunsw., 
349,  359  (1901);  Leonard  v.  Boisvert,  10  Que.,  S.  C,  343,  370  (1896); 
Nicholson  v.  Bank  of  New  Zealand,  12  N.  Z.,  427,  439  (1894);  see,  also, 
Nelson  v.  Howison,  122  Ala.,  573,  578  (1898);  Binkley  v.  Forkner,  117 
Ind.,  176,  186  (1888);  Swoop  v.  St.  Martin,  110  La.,  237  (1903);  J.  L. 
Mott  Iron  Works  v.  Reilly,  81  N.  Y.  Supp.,  323  (1903)  ;  Sinker  v.  Com- 
paret,  62  Tex.,  470  (1884);  Laino  v.  Beland,  26  Can.,  419  (1896),  aff'g 
Beland  v.  Laine,  4  Q.  B.,  354  (Que.,  1895)  ;  Budden  v.  Knight,  3  Que.  L. 
E.,  273,  282  (1877);  Rose  v,  Hope,  22  Up.  Can.  C.  P.,  482.] 

486 


Cn^VP.  IX.]  REGISTRY  ACTS.  *320 

*an  incumbrance  upon  goods  and  chattels  is  not  sufficient  [*320] 
to  deprive  such  purchase  or  mortgage  of  the  real  estate  of  its 
bona  fide  character.^  And  a  mortgage  of  realty  and  fixtures  ap- 
purtenant thereto,  if  duly  recorded  as  a  mortgage  of  realty, 

[The  fact  that  a  grantee  did  not  see  the  articles  before  he  bought,  is 
immaterial,  as  he  bought  the  house  as  it  was,  and  there  was  nothing  to 
put  him  upon  inquiry.  Eidgeway  Stove  Co.  v.  Way,  141  Mass.,  557,  560 
(1886).] 

[A  "hire  plate"  upon  an  engine,  showing  property  in  the  seller  thereof, 
is  not  notice  to  a  mortgagee  of  the  land  who  is  not  aware  of  it.  Hobson 
V.  Gorringe  [1897],  1  Ch.,  182,  195.] 

[An  intention  between  lessor  and  lessee  to  regard  improvements  as 
personalty,  can  not  convert  what  the  law  regards  as  a  part  of  the  realty 
into  personalty,  so  as  to  affect  the  rights  of  third  parties.  The  lessor 
can  not  claim  a  lien  on  a  mill  as  personal  property  as  against  a  mortgagee 
of  the  leasehold.     First  Nat.  Bank  v.  Adam,  138  111.,  483   (1891).] 

[An  agreement  between  the  buyer  and  seller  of  a  machine  that  it  is  to 
remain  the  property  of  the  seller  until  paid  for,  such  machine  being 
annexed  by  the  buyer  to  realty  in  his  possession  as  tenant,  will  not  avail 
against  one  taking  an  assignment  of  the  lease  without  notice,  where,  by 
the  provisions  of  the  lease,  machinery  is  to  pass  with  the  reversion  to  the 
lessors.  Simpson  Brick  Press  Co.  v.  Wormley,  61  111.  App.,  460,  464 
(1895).] 

[Where,  by  agreement,  a  lessee  is  to  provide  the  building  with  a  system 
of  heating,  for  which  the  lessor  is  to  pay  him  a  certain  sum,  and  the 
agreement  is  carried  out,  but  as  between  the  seller  and  the  lessee  the  sale 
of  the  apparatus  is  conditional,  of  which  the  lessor  has  no  notice,  the 
Beller  can  be  enjoined  by  the  lessor  from  removing  the  apparatus.  Camp 
V.  Charles  Thatcher  Co.,  75  Conn.,  165    (1902).] 

[See  Schmaltz  v.  York  Mfg.  Co.,  204  Pa.  St.,  1,  18  (1902),  in  regard  to 
conflict  of  laws  where  the  fixture  is  in  another  state.] 

iBrennan  v.  Whitaker,  15  Ohio  St.,  446  (1864);  Bringholff  v.  Munzen- 
maier,  20  Iowa,  513  (1866).  In  this  case  Dillon,  J.,  said:  "They  had  no 
constructive  notice  of  the  plaintiff's  right,  because  the  plaintiff's  mortgage 
•was  a  chattel  mortgage,  and  recorded  and  indexed  as  such.  There  never 
having  been  any  actual  severance  of  the  articles  in  question,  and  the  same 
being  admitted  to  constitute,  as  between  vendor  and  vendee,  part  of  the 
realty,  a  subsecjuent  7)urchascr  would  not  be  bound  to  take  notice  of  a 
chattel  mortgage  tlicrcon ;  the  statute  requiring  those  to  be  separately  re- 
corded, and  separately  indexed,     Kevision,  ch.  93  &  96. 

"If  the  defendants  at  the  time  of  their  purchase  had  been  shown  to 
have  had  knowledge  of  the  plaintiff's  mortgage  the  question  then  arising 
would  be  mudi  more  diflicult  of  solution.  But  without  such  knowloiigc, 
it  appears  to  uh  j)lain  that  the  defendants  have  the  title  to  the  property 
in   qiifHtion.     Any   other   rule  would   practically  nullify   the   registry   laws, 

487 


•320  TUE  LuUV  OF  FIXTURES.  [CHAP.  IX. 

or  else  introduee  the  startling  doctrine  that  in  examining  the  title  to  real 
estate,  the  searcher  must  also  examine  the  records  of  chattel  mortgages. 
If  the  defendants,  prior  to  their  purchase  from  Rawson,  had  visited  the 
premises,  they  would  have  seen  the  property  in  question,  constituting  to 
all  appearance  part  of  the  real  estate.  There  would  be  nothing  on  the 
ground  and  nothing  in  the  nature  of  the  property  to  advise  them  of  the 
plaintiff 's  adverse  right  or  ownership.  Eawson,  and  not  plaintiff,  was,  it 
seems,  in  possession.  If  defendants  should  then  examine  the  records  of 
real  estate  transfers,  they  would  there  discover  nothing  advising  them  of 
the  plaintiff's  claim.  They  are,  therefore,  entitled  to  and  do  stand  free 
from  it."  In  this  case  the  fixtures  were  originally  owned  by  the  mort- 
gagor and  were  without  an  actual  severance  and  while  annexed  to  the 
realty,  chattel  mortgaged  to  plaintiff,  and  afterwards  the  real  estate  to 
which  the  fixtures  were  annexed  was  sold  and  conveyed  to  defendants  who 
had  no  actual  notice  of  the  chattel  mortgage.  See,  also,  Eastman  v.  Fos- 
ter, 8  Met.,  19  (1844);  Gooding  v.  Eiley,  50  N.  H.,  400,  413  (1870).  See, 
however.  Ford  v,  Cobb,  20  N.  Y.,  344  (1859)  ;  Crippen  v.  Morrison,  13 
Mich.,  28   (1864). 

However,  in  Sowden  v.  Craig,  26  Iowa,  156  (1868),  Dillon,  J.,  dis- 
senting, the  constructive  notice  by  recording  of  a  chattel  mortgage  upon 
engines,  boilers  and  saws,  which  were  afterwards  with  the  knowledge 
and  consent  of  the  mortgagee  firmly  annexed  to  the  realty  as  fixtures,  the 
chattel  mortgage  being  recorded  before  such  annexation,  was  regarded  as 
equally  effectual  for  the  protection  of  the  mortgagee  as  actual  notice. 
The  defendant  in  this  case  without  notice  purchased  the  fixtures  of  the 
vendee  on  execution  to  enforce  a  mechanic 's  lien,  who  had  been  in  pos- 
session about  two  years  before  taking  the  machinery  to  pieces  and  selling 
it  to  defendant.  The  dissenting  opinion  in  this  case  seems  to  be  the 
more  reasonable  doctrine. 

[In  Sword  v.  Low,  122  111.,  487,  503  (1887),  Shope,  J.,  in  delivering  the 
opinion  of  the  court,  says :  ' '  We  can  see  no  hardship  in  holding  that 
as  to  articles  wMch  necessarily  retain  their  individual  characteristics 
after  being  annexed  to  the  soil,  and  which  may  or  may  not  be  fixtures, 
and  which  it  is  apparent  may  be  removed  without  material  injury  to  the 
freehold,  the  purchaser  or  incumbrancer  will  be  required  to  take  notice 
of  what  is  apparent  upon  the  public  record.  *  *  »  *  jje  would  be 
required  to  take  notice  of  judgment  liens,  although  not  apparent  upon  the 
land  record.  So,  also,  of  tax  liens.  *  *  *  *  jf  th^  lien  may  not  thus 
be  preserved,  no  one  could  buy,  on  time,  property  which  may  become  a 
fixture,  and  secure  the  purchase  money  by  a  chattel  mortgage  thereon,  for 
as  soon  as  it  is  put  into  use  the  lien  of  the  mortgage  would  be  extin- 
guished."    It  seems,  in  this  case,  that  the  grantee  had  actual  notice.] 

[The  following  cases  sustain  the  doctrine  laid  down  in  the  text: 
Fletcher  v.  Kelly,  88  Iowa,  475,  484  (1893)  ;  Williams  v.  Hyde,  98  Mich., 
152,  153  (1893)  ;  Tibbetts  v.  Home,  65  N.  H.,  242,  247  (1889)  ;  Case 
Mfg.  Co.  V.  Garven,  45  Ohio  St.,  289,  303  (1887),  affirming  Garven  v. 
Hogue,  14  Wkly.  Cin.  Law  Bui.,  175   (C.  C,  1885)  ;  Ice  Co.  v.  Lone  Star 

488 


CHAP.   IX.]  REGISTRY   ACTS.  *321 

need  *not  be  recorded  also  as  a  chattel  mortgage  in  order  [*321] 
to  protect  such  fixtures  from  the  execution  creditors  of  the 
mortgagor,  even  though  such  fixtures  are  only  constructively- 
annexed  to  the  realty.^ 

Works,  15  Tex.  Civ.  App.,  694,  699  (1897)  ;  Bacon  v,  Lewis,  33  Can. 
Law  J.,  680,  687  (Ont.,  1897);  see,  also,  Malott  v.  Price,  109  Ind.,  22 
(1886)  ;  Price  v.  Malott,  85  Ind.,  266  (1882)  ;  Holt  County  Bank  v.  Tootle, 
25  Neb.,  408,  418  (1889);  Eowlaud  v.  "West,  69  Supr.  Ct.  (62  Hun),  583, 
586  (N.  Y.,  1892).] 

[Where  the  answer  to  a  complaint  to  foreclose  a  chattel  mortgage  upon 
a  saw-mill  and  a  grist-mill,  alleges  that  they  are  stationary,  that  the 
defendant  bought  them  without  notice,  and  that  the  records  of  real  estate 
mortgages  do  not  disclose  any  mortgage  thereon,  but  does  not  deny  that 
they  are  chattels  and  does  not  show  that  they  are  a  part  of  the  realty,  is 
insufficient.     Price  v.   Malott,  85  Ind.,   266    (1882).] 

[Gas  fixtures  are  ' '  household  goods ' '  within  the  Lien  Law,  and  filing 
a  contract  for  a  conditional  sale  thereof,  being  unnecessary  under  such 
law,  can  not  operate  as  constructive  notice  to  one  who,  at  a  foreclosure 
sale  under  a  mechanics '  lien,  purchased  the  buildings  in  which  such  fixtures 
have  been  installed.    Baldinger  v.  Leviue,  83  App.  Div.,  130  (N.  Y.,  1903).] 

1  Farmers'  Loan  &  Trust  Co.,  v.  St.  Jo.  Ewy.  Co.,  3  Dill.  C.  C,  412 
(1875).  The  property  in  question  in  this  case  was  railroad  rolling-stock, 
as  to  which  the  opinion  has  been  hereinbefore  expressed  (anfe,  p.  *34  et 
seq.)  that  it  is  simply  personalty  and  not  realty.  But  the  principle  stated 
in  the  text  is  nevertheless  believed  to  be  correct. 

[Allen  V.  Woodard,  125  Mass.,  400  (1878);  Williamson  v.  N.  J.  S.  E. 
E.  Co.,  28  N.  J.  Eq.,  277  (1877);  McMillan  v.  Fish,  29  N.  J.  Eq.,  610, 
612  (1878);  William  Firth  Co.  v.  South  Carolina  Loan  Co.,  122  Fed., 
569  (U.  S.  C.  C.  A.,  S.  C,  1903);  Kirkpatrick  v.  Cornwall  Street  E 'y  Co., 
2  Ont.  Law,  113  (App.,  1901);  Stevens  v.  Barfoot,  13  Up.  Can.  App.,  366 
(1886).] 

[Where  a  mortgage  of  a  Vermont  railroad  included  its  cars,  and  was 
registered  in  Vermont,  such  cars  can  not  be  levied  upon  in  Quebec,  although 
the  cars  were,  under  a  traffic  arrangement,  in  Quebec  at  the  time  of  the 
execution  of  the  mortgage,  and  the  mortgage  was  never  registered  in 
Quebec.  Baker  v.  Central  Vermont  E'y,  4  Ecvue  do  Juris,,  454  (Super, 
Ct,  Que.,  1898).] 

[Where  the  contention  was  that  a  surety  on  a  promissory  note  was  dis- 
charged because  a  mortgage,  in  form  and  substance  a  real  estate  mortgage, 
was  not  recorded  by  the  creditor  as  a  chattel  mortgage  whereby  a  portion 
of  the  security  was  lost,  the  court  held  tiiat  the  mortgage  was  of  real 
estate  only,  with  Hwh  artifles  as  were  attached  to  it  in  such  manner  as 
to  be  properly  fixtures;  and  having  been  recorded  as  a  mortgage  of  realty, 
it  was  not  the  duty  of  the  mortgagee  to  cause  the  instrument  to  be  re- 
corded as  a  chattel  mortgage,  nor  would  it  have  been  proper  for  him  to 
do  80.     Al]c;i  V.  Woodard,  125  Mass.,  400,  402  (1878).] 

489 


*321  THE  L.S.W  OF  FIXTURES.  [CHAP.   IX. 

As  has  been  already  stated  in  a  preceding  section,  fixtures 
and  the  hind  upon  which  they  are  situated  nuiy  be  the  subjects 
of  distinct  contracts  and  separately  conveyed,  thoug^h  not  nec- 
essarily by  separate  instruments.-  This  sometimes  becomes  a 
material  subject  of  incpiiry  in  connection  with  the  construction 
of  acts  under  certain  circumstances  requiring  the  registration 
of  bills  of  sale,  chattel  mortgages,  etc.,  affecting  the  title  to 
personal  chattels;  and  has  come  under  ctiscussion  in  a  number 
of  cases  relating  to  the  English  Bills  of  Sale  Act,  17  and  18 
Vict.,  chap.  36,  the  material  provision  of  which,  so  far  as  relat- 
ing to  this  question,  will  be  found  stated  in  the  note  below.^ 

[Where  a  recorded  deed  provides  that  the  grantee  shall  erect  a  shoe 
factory  upon  the  lots  conveyed,  and  that  none  of  the  machinery  placed 
therein  shall  be  removed  for  five  years,  this  is  notice  to  the  seller  of  ma- 
chinery to  be  placed  therein.  Fifield  v.  Farmers  Nat.  Bank,  148  111.,  163, 
168   (1893).] 

2  Ante,  p.  *311. 

3  By  the  Bills  of  Sale  Act  (17  &  18  Vict.,  c.  36,  July  10th,  1854),  after 
reciting  that  frauds  are  frequently  committed  upon  creditors  by  secret 
bills  of  sale  of  personal  chattels,  whereby  persons  are  enabled  to  keep  up 
the  appearance  of  being  in  good  circumstances  and  possessed  of  property, 
and  the  grantees  or  holders  of  such  bills  of  sale  have  the  power  of  taking 
possession  of  the  property  of  such  persons,  to  the  exclusion  of  the  rest  of 
their  creditors: — 

It  is  enacted  substantially  as  follows:  That  every  bill  of  sale  (defined  in 
sec.  7,  to  include  also,  assignments,  transfers,  declarations  of  trust  without 
transfer,  and  other  assurances  of  personal  chattels,  and  also  powers  of 
attorney,  authorities  or  licenses  to  take  possession  of  personal  chattels  as 
security  for  any  debt,  with  certain  exceptions  therein  specified),  of  per- 
sonal chattels  (also  defined  in  sec.  7  to  mean  goods,  furniture,  fixtures, 
and  other  articles  capable  of  complete  transfer  by  delivery,  with  certain 
exceptions  therein  enumerated,  as  chattel  interests  in  real  estate,  stocks, 
etc.),  either  absolutely  or  conditionally,  or  subject  or  not  subject  to  any 
trusts,  and  whereby  the  grantee  or  holder  shall  have  power,  either  with  or 
without  notice,  and  either  immediately  after  the  making  of  such  bill  of  sale 
or  at  any  future  time,  to  seize  or  take  possession  of  any  property  and 
effects  comprised  in  or  made  subject  to  such  bill  of  sale,  and  every  schedule 
or  inventory  which  shall  be  thereto  annexed  or  therein  referred  to,  or  a 
true  copy  thereof,  and  of  every  attestation  of  the  execution  thereof,  shall, 
together  with  an  affidavit  of  the  time  of  such  bill  of  sale  being  made  or 
given,  and  a  description  of  the  residence  and  occupation  of  the  person 
making  or  giving  the  same,  or,  in  case  the  same  shall  be  made  or  given 
by  any  person  under  or  in  the  execution  of  any  process,  then  a  descrip- 
tion  of  the   residence   and   occupation   of  the   person   against   whom   Fueh 

490 


CHAP.   IX.]  REGISTRY   ACTS.  *322 

*It  is  to  be  observed  that  the  word  "fixtures"  as  used  [*322] 
in  the  Bills  of  Sale  Act  means  that  thing  which  in  contempla- 
tion of  law  has  a  distinct  existence  as  a  fixture/  articles  capable 
of  a  complete  transfer  by  delivery. 

process  shall  have  issued,  and  of  every  attesting  witness  to  such  bill  of 
sale,  be  filed  with  the  officer  acting  as  clerk  of  the  docquets  and  judg- 
ments in  the  Court  of  Queen 's  Bench,  within  21  days  after  the  making  or 
giving  such  bill  of  sale  (in  like  manner  as  a  warrant  of  attorney  in  any 
personal  action  given  by  a  trader  is  now  by  law  required  to  be  filed), 
otherwise  such  bill  of  sale  shall  as  against  all  assignees  of  the  estate  and 
effects  of  the  person  whose  goods  or  any  of  them  are  comprised  in  such 
bill  of  sale,  under  the  laws  relating  to  bankruptcy  or  insolvency,  or  under 
any  assignment  for  the  benefit  of  the  creditors  of  such  person,  and  as 
against  all  sheriffs'  officers  and  other  persons  seizing  any  property  or 
effects  comprised  in  such  bill  of  sale  in  the  execution  of  any  process  of 
any  court  of  law  or  equity  authorizing  the  seizure  of  the  goods  of  the  per- 
son by  whom  or  of  whose  goods  such  bill  of  sale  shall  have  been  made, 
and  against  every  person  on  whose  behalf  such  process  shall  have  been 
issued,  be  null  and  void  to  all  intents  and  purposes  whatsoever,  so  far 
as  regards  the  property  in  or  right  to  the  possession  of  any  personal  chat- 
tels comprised  in  such  bill  of  sale,  which  at  or  after  the  time  of  such 
bankruptcy,  or  of  filing  the  insolvent 's  petition  in  such  insolvency,  or  of  the 
execution  by  the  debtor  of  such  assignment  for  the  benefit  of  his  creditors, 
or  of  executing  such  process  (as  the  case  may  be),  and  after  the  expiration 
of  the  said  period  of  21  days,  shall  be  in  the  possession  or  apparent  pos- 
session of  the  person  making  such  bill  of  sale,  or  of  any  person  against 
whom  the  process  shall  have  issued  under  or  in  the  execution  of  which 
such  bill  of  sale  shall  have  been  made  or  given,  as  the  case  may  be. 

The  act  after  providing  that  any  defeasance,  or  condition  or  declaration 
of  trust  not  contained  in  the  body  of  the  bill  of  sale,  shall  be  written 
on  the  same  paper  on  which  the  bill  of  sale  is  written  before  filing,  and 
after  prescribing  the  manner  of  indexing,  amount  of  fees,  etc.,  further 
enacts  that  personal  chattels  shall  be  deemed  to  bo  in  the  "apparent  pos- 
session" of  the  person  making  or  giving  the  bill  of  sale,  so  long  as  they 
shall  remain  or  be  in  or  upon  any  house,  mill,  warehouse,  building,  works, 
yard,  laml,  or  other  premises  occupied  by  him,  or  as  they  shall  be  used 
and  enjoyed  by  him  in  any  place  whatsoever,  notwithstanding  that  formal 
possession  thereof  may  have  been  taken  by  or  given  to  any  other  person. 

[This  Act  has  since  been  amended.] 

1  Per  James,  L.  J.,  in  Ex  parte  Daglish,  L.  R.,  8  Ch.  App.,  1072,  1080 
(1873).  See,  also,  Waterfall  v.  Penistonc,  6  Ell.  &  B.,  876,  889  (1856). 
Apart  from  the  interpretation  clause  (sec.  7)  fixtures,  it  is  said,  would  not 
be  personal  chattels;  but  for  the  purpose  of  that  act  they  are  made  so  by 
that  clause.  Per  Blackburn,  J.,  in  ITawtry  v.  Biitlin,  L.  R.,  8  Q.  B.,  290 
(1873).  That  act  docs  not,  however,  make  fixtures  chattels  for  all  j)ur- 
poscs.     Meux  V.  Allen,  23  W.  R.,  526   (1875);  s.  c,  L.  R.,  7  Eng.  &  Ir. 

491 


*323  TUE  L.VW  OF  FIXTURES.  [CHAP.  IX. 

With  reference  to  this  and  simihir  statutes,  it  is  quite 
[*323J  *generally  held  that  where  the  fixtures  in  question  pass 
with  and  as  a  part  of  the  freehold,  it  is  unnecessary  that  the 
instrument  by  which  they  are  conveyed  or  incumbered,  should 
be  filed  as  a  bill  of  sale  or  chattel  mortgage ;  -  and  as  already 
observed  at  the  beginning  of  this  chapter,  the  mere  grant  of 
the  land  by  the  owner  in  fee  will  be  sufficient  to  pass  the  fix- 
tures as  parcel  thereof,  unless  there  is  something  in  the  deed 
to  indicate  a  contrary  intention.  So,  where  it  is  the  intention 
of  the  parties,  as  shown  by  the  terms  of  the  instrument  by  the 
use  of  a  general  description  of  the  property  mortgaged,  as 
factories,  shops,  etc.,  with  all  the  machinery,  fixtures,  engines, 
etc.,  that  the  fixtures  should  pass  as  a  part  of  the  freehold, 
they  \\all  so  pass  and  registration  is  unnecessary.^     The  court 

App.,  481.  Growing  crops  are  not  personal  chattels  within  this  act.  Bran- 
ton  V.  Griffits,  L.  R.,  1  C.  P.  D.,  349  (1876),  [affirmed  (1877),  2  C.  P.  D., 
212.     Ex  parte  Payne   (1879),  11  Ch.  D.,  539.] 

[An  assignment,  for  security,  covering  fixtures  excluded  by  Section  5, 
from  the  definition  of  ' '  trade  machinery, ' '  does  not  require  registration, 
Topham  v.  Greenside  Fire-Brick  Co.   (1887),  37  Ch.  D.,  281.] 

[Under  Sec.  10  of  the  Nova  Scotia  "Bills  of  Sale  Act,"  which  is  taken 
from  the  English  ' '  Bills  of  Sale  Act, ' '  the  expression  ' '  fixtures ' '  has 
reference  to  such  articles  as,  although  technically  called  fixtures,  are  not 
made  a  permanent  portion  of  the  land,  and  may  be  passed  from  hand  to 
hand  without  reference  to  or  in  any  way  affecting  land.  The  statute  does 
not  have  articles  in  view  which  can  only  be  ' '  delivered ' '  by  being  forcibly 
detached  from  the  land.     Warner  v.  Don,  26  Can.,  388,  392   (1896).] 

2  Potts  V.  New  Jersey  Arms  Co.,  17  N.  J.  Eq.,  395,  404  (1866).  See, 
also,  cases  cited  in  the  following  notes.  [See,  ante,  p.  *320.  Be  Yates 
(1888),  38  Ch.  D.,  112;  Be  Calvert  [1898],  2  I.  E.,  501,  507;  Ex  parte 
Moore  &  Robinson's  Banking  Co.   (1880),  14  Ch.  D.,  379.] 

[The  transfer  of  title  to  fixtures  to  the  landlord  by  implication  of  law 
upon  the  expiration  of  the  term  is  not  within  the  Chattel  Mortgage  Act. 
Gray  v.  McLennan,  3  Man.,  337,  343   (1886).] 

3  See,  Potts  v.  New  Jersey  Arms  Co.,  17  N.  J.  Eq.,  395,  404  (1866); 
Mather  v.  Eraser,  2  Kay  &  J.,  536  (1856)  ;  2  Jur.  (N.  S.),  900;  25  L.  J., 
Ch.,  361;  4  W.  E.,  387;  27  L.  T.,  41;  The  Patent  Peat  Co.,  17  L.  T,  (N. 
S.;,  G9  (18C7),  the  case  of  a  railway  affixed  to  the  ground  by  means  of 
sleepers  partially  buried  in  the  ground,  the  rails  let  into  the  sleepers  and 
spiked  thereto;  Holland  v.  Hodgson,  L.  E.,  7  C.  P.,  328  (1872);  s.  C,  26 
L.  T.  (N.  S.),  709;  2  English  Eep.  (Moak's),  655;  Be  Dawson,  Tate  & 
Co.,  Ir.  R.,  2  Eq.,  218  (1868)  ;  S.  C,  16  W.  R.,  424;  Boyd  v.  Shorock,  L.  E., 
5  Eq.,  72    (1867),  stated,  j^ost,  in  this  section.     [Be  Goldville  Mfg.  Co., 

492 


CHAP.   IX.]  REGISTRY   ACTS.  *324 

will  in  such  case  infer  that  all  such  articles  passed  by  the  mere 
grant  of  the  land  unless  in  that  which  follows  the  grant  of  the 
land,  there  is  sufficient  to  rebut  that  inference.  And,  though,  as 
was  observed  by  Wood,  V.  C,  in  IMather  v.  Fraser,  it  may  have 
been  superfluous  to  enumerate  those  articles  which  would  have 
passed  without  any  such  enumeration,  it  cannot  be  said  that 
because  specific  articles  are  expressly  enumerated,  they  are 
therefore  less  part  of  the  freehold  or  less  attached  to  it.^ 

But  where  the  intention  of  the  parties  as  shown  by  the  in- 
strument of  conveyance,  is  that  the  fixtures  shall  pass  separately 
from  the  freehold,  whether  this  intention  is  manifested  by 
*appropriate  words  in  the  same  instrument  that  conveys  [*324] 
the  freehold,  or  by  a  separate  instrument,  the  case  comes  within 
the  Bills  of  Sale  Act,  and  the  instrument  should  be  filed  in  the 
appropriate  office  as  a  bill  of  sale.^  So,  in  the  case  of  convey- 
ances or  mortgages  of  leasehold  interests,  the  intention  that 
the  fixtures  should  pass  separately  from  the  land  may  appear 

118  Fed.  892,  897  (U.  S.  Dist.  Ct.,  S.  C,  1902),  affirmed  William  Firth 
Co.  V.  South  Carolina  loan  Co.,  122  Fed.,  569  (U.  S.  C.  C.  A.,  S.  C,  1903) ; 
Be  Brooke  [1894],  2  Ch.,  600;  Ex  parte  Moore  &  Eobinson's  Banking  Co. 
(1880),  14  Ch.  D.,  379,  388;  Irish  Bldg.  Soc.  v.  Mahony  (1878),  10  Irish 
K.,  Law,  363;  see,  also,  Re  Lusty  (1889),  60  Law  T.  R.,  160.] 

4  See  the  cases  cited  in  next  note^  supra;  also  Ex  parte  Barclay,  5  DeG. 
M.  &  a.,  403  (1855). 

0  See  Begbie  v.  Fenwick,  L.  E.,  8  Ch.  App.,  1075  note  (1866) ;  s.  c,  24 
L.  T.  (N.  S.),  58;  25  L.  T.  (N.  S.),  441.  (See  this  case  stated  ante,  p. 
311)  ;  Waterfall  v.  Penistone,  6  Ell.  &  B.,  876  (1856)  ;  s.  c,  3  Jur.  (N.  S.), 
15;  26  L.  J.,  Q.  B.,  100;  37  Eng.  L.  &  Eq.,  156;  Hawtry  v.  Butlin,  L.  R., 
8  Q.  B.,  290  (1873)  ;  s.  c,  21  W.  K.,  633;  42  L.  J.,  Q.  B.,  163;  28  L.  T. 
(N.  S.),  532;  5  English  Eep.   (Moak's),  241. 

[Johns  V.  Ware  [1899],  1  Ch.,  359;  Small  v.  National  Provincial  Bank 
[1894],  1  Ch.,  686;  Be  Trethowan  (1877),  5  Ch.  D.,  559;  see,  also,  Shel- 
don V.  Wickham,  50  N.  Y.  Supp.,  314,  315  (1898).] 

In  Waterfall  v.  Penistone,  tlie  instrument  in  question  purported  to  be 
in  terms  a  bill  of  sale  of  machinery  (commonly  known  as  trade  fixtures), 
executed  by  the  owner  of  the  freehold,  who  in  the  same  instrument  further 
charged  his  equity  of  redemption  in  the  premises  on  which  they  were  sit- 
uated not  only  to  secure  the  sum  of  £500,  to  secure  which  the  bill  of  sale 
was  executed,  but  also  to  secure  the  moneys  secured  by  a  former  inden- 
ture. Held,  that  under  the  interpretation  clause  (sec.  7)  the  machinery 
was  personal  chattels,  the  intention  of  the  parties  appearing  to  be  that  it 
should  pass  separately  from  the  freehold. 

493 


*325  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

by  the  use  of  separate  operative  parts  to  the  same  instrument." 
Wliere  a  tenant  for  years  mortgages  his  term  by  way  of  under- 
lease, and  by  the  same  instrument  mortgages  his  absolute  inter- 
est in  trade-iixtures  annexed  to  the  hereditaments  subject  to 
the  term ;  "^  or,  where  the  lessee  demises  by  way  of  mortgage  a 
mill  and  all  the  steam-engines,  mill-gear  and  fixed  and  movable 
machinery  to  hold  as  to  the  land,  mill,  steam-engines,  boilers 
and  such  machinery  as  is  of  the  nature  of  fixtures  for  the  residue 
of  the  term  except  the  last  day,  and  as  to  the  movable  machin- 
ery and  other  articles  not  in  the  nature  of  fixtures,  absolutely, 
the  deed  containing  a  power  of  sale  by  the  mortgagee,  of  the 
[*325]  premises  or  any  part  thereof  *either  together  or  in  par- 
eels,  and  as  to  the  steam-engines,  boilers,  fixed  and  movable 
machinery,  either  together  with  the  buildings  and  land  or  sepa- 
rately and  detached  therefrom,  and  to  make  stipulations  as  to 
the  removal  of  any  property  sold  separately  from  the  buildings,^ 
the  deeds  of  mortgage  so  far  as  they  severally  relate  to  the 
trade-fixtures,  require  registration  under  the  Bills  of  Sale  Act. 

In  Hawtry  v.  Butlin,  Mellor,  J.,  in  delivering  his  judgment, 
said:  "It  appears  that  the  mortgage  deed  contains  an  assign- 
ment of  trade  fixtures,  and  if  they  alone  were  conveyed,  in 
order  to  secure  the  creditor  it  would  be  necessary  to  register 
the  deed.  I  do  not  think  that  the  deed  conveying  the  fixtures 
is  to  be  exempt  from  registration  because  it  likewise  creates  an 
under-lease.  I  think  that  the  mortgage  deed  is  within  the 
policy  and  the  language  of  the  interpretation  clause."  In  the 
same  case,  Lush,  J.,  said:  "When  a  conveyance  is  made  of  a 
building  in  fee  the  instrument  cannot  be  said  to  be  a  bill  of 
sale  requiring  registration,  although  trade  fixtures  may  pass  as 
part  of  the  building.  But  the  present  case  is  different.  The 
mortgage  is  a  demise  by  way  of  under-lease,  and  by  virtue  of 
the  demise  the  lessees  would  at  the  utmost  have  been  entitled 
to  the  fixtures  for  the  term;  but  the  deed  assigns  an  absolute 

sBegbie  v.  Fenwick  (supra);  Hawtry  v.  Butlin  (supra).  [Ex  parte 
Brown   (1878),  9  Ch.  D.,  389,  393.] 

7  Hawtry  v.  Butlin  (supra).     [Be  Trethowan  (1877),  5  Ch.  D.,  559.] 
sEx  parte  Daglish,  L.  K.,  8  Ch.  App.,  1072  (1873)  ;  s.  c,  21  W.  R.,  893; 
42  L.  J.,  Bank.,  102;   29  L.  T.    (N.  S.),   168;   7  English  Eep-   (Moak's), 
562.     [Followed  in  Ee  Eslick  (1876),  4  Ch.  D.,  503,  507.] 

494 


CH.VP.   IX.]  REGISTRY   ACTS.  *326 

interest  in  them  to  the  mortgagees.  It  is  therefore  a  bill  of 
sale  of  personal  chattels  within  17  and  18  Viet.,  e.  36." 

In  Ex  parte  Daglish,  James,  L.  J.,  in  considering  this  ques- 
tion said :  "In  the  case  of  a  freeholder  the  freeholder  has  exactly 
the  same  interest  in  everything  attached  to  the  freehold  as  he 
has  in  the  bricks  and  mortar  themselves  which  make  up  the 
walls  of  the  freehold.  But  that  is  not  the  case  with  respect  to 
a  tenant  who  has  a  limited  interest — it  does  not  signify  what 
that  limited  interest  is — in  the  soil  and  buildings,  and  who  has 
besides  an  absolute  interest,  a  complete  and  unqualified  property 
(unqualified  except  as  to  this,  that  he  must  remove  it  before  the 
end  of  that  term)  in  the  fixtures  as  distinct  from  the  interest  in 
the  land.  This  interest  is  a  thing  which  he  can  part  with,  a 
thing  which  his  creditors  can  seize,  and  a  thing  *which  [*326] 
is  liable  to  execution  as  against  him  just  as  much  as  the  chairs 
and  tables  in  his  house.  When  you  once  arrive  at  the  fact  that 
a  person  has  the  property  in  fixtures  as  distinct  from  their  con- 
nection with  and  adhesion  to  the  freehold,  then  they  are  in  my 
opinion  the  very  class  of  things  which  were  intended  to  be 
provided  for  by  the  Bills  of  Sale  Act.  If  the  tenant  is  pre- 
cluded from  making  a  mortgage  of  his  fixtures  to  one  of  his 
creditors  by  a  bill  of  sale,  it  would  be,  in  my  opinion,  a  very 
narrow  construction  of  the  act.  It  would  not  be  to  further  the 
policy  of  the  law,  but  would  enable  ingenious  conveyancers  to 
defeat  it,  if  we  were  to  say  that  a  man  who  could  not  sell  the 
chattels,  who  could  not  give  a  security  upon  the  chattels  them- 
selves by  a  bill  of  sale,  could  do  it  by  demising  the  property, 
which  might  be  held  in  a  tenancy  from  year  to  year,  to  an  under- 
tenant for  the  whole  of  his  term,  and  then  demising  or  assign- 
ing with  it  the  fixtures,  with  a  power  of  entering  at  any  time 
and  seizing  and  selling  those  fixtures  as  distinct  property.  Such 
a  construction  would  really  make  the  act  of  Parliament  almost 
a  plaything." 

In  Ex  parte  Barclay,^  the  case  of  Ex  parte  Daglish  was  dis- 
tinguished and  explained.  In  Ex  parte  Barclay,  J.,  the  lessee 
of  a  public  house  and  two  (cottages,  who  was  bound  by  the 
covenants  of  his  lease  to  deliver  up  at  the  expiration  of  his  term 

iL.  R.,  9  Ch.  App.,  576   (1874);  s.  C,  22  W.  E.,  608;  43  L.  J.,  Bank., 
137;  30  L.  T.   (N.  S.),  479. 

495 


*327  THE  LAW  OP  FIXTURES.  [CHAP.  IX. 

all  fixtures,  except  trade  fixtures,  demised  by  way  of  mortgage 
the  public  house  and  premises  and  also  the  two  cottages  and 
app\irtenanees,  including  all  the  tenant's  fixtures,  to  B.  for  the 
residue  of  the  term  except  the  last  three  days.     The  deed  em- 
powered the  mortgagee  in  case  of  default  to  sell  the  premises 
thereby  demised  or  any  part  thereof,  either  for  the  term  thereby 
granted,  or  for  the  whole  term  granted  by  the  original  inden- 
ture of  lease,  and  either  together  or  in  parcels,  with  a  declaration 
that  in  case  of  any  such  sale,  the  mortgagor  should  hold  the 
last  three  days  of  the  term  in  trust  for  the  purchaser.    J.  after- 
wards filed  a  petition  for  liquidation  and  a  trustee  was  ap- 
[*327]  pointed.     Afterwards  B.  sold  the  public  house,  *with 
the  two  cottages  for  the  remainder  of  the  term  to   E.,   who 
agreed  to  take  and  pay  for,  at  a  valuation,  such  part  of  the 
household  furniture,  fixtures,  etc.,  then  on  the  premises,  as  the 
vendors  or  the  trustee  of  J.'s  property  might  be  disposed  or 
have  a  right  to  sell.     The  trade  and  other  tenant's  fixtures 
were  accordingly  valued  at  £170.     The  trustee  contended  that 
the  mortgagees  had  no  right  to  the  value  of  any  of  the  fixtures, 
on  the  ground  that  the  mortgage  deed  had  not  been  registered. 
The  money  was  accordingly  paid  into  court,  and  application 
made  by  B.  for  a  declaration  that  the  tenant's  fixtures  formed 
part  of  his  security,  and  for  an  order  for  the  trustee  to  pay 
him  the  value  thereof.    The  Registrar  dismissed  the  application, 
being  of  opinion  that  the  case  was  governed  by  the  decision 
in  Ex  parte  Daglish ;  but  on  appeal  the  judgment  of  the  Regis- 
trar was  reversed,  and  it  was  held  that  the  words  "to  sell  the 
same  either  together  or  in  parcels,"  only  referred  to  the  public 
house  and  the  cottages,  and  were  not  intended  to  enable  the 
fixtures  to  be  sold  separately  from  the  premises,  and  that  there- 
fore the  instrument  did  not  require  to  be  registered  under  the 
Bills  of   Sale  Act.     Sir   G.   Hellish,   L.   J.,   in   delivering  his 
opinion,  said :    "I  think  that  when  a  lessee  who  has  put  in  trade 
fixtures,  and  is,  according  to  the  ordinary  law,  entitled  to  re- 
move those  fixtures  as  against  his  landlord,  mortgages  the  prem- 
ises with  the  fixtures  upon  them,  the  test  whether  the  mortgage, 
so  far  as  respects  the  fixtures,  requires  to  be  registered  under 
the  Bills  of  Sale  Act,  is  whether  he  gives  power  to  the  mort- 
gagee to  sever  the  fixtures  from  the  premises,  and  to  deal  with 

496 


CHAP.   IX.]  REGISTRY   ACTS.  *328 

them  and  sell  them  separately.  If  he  does,  then  I  am  of  opinion, 
as  we  decided  in  Ex  parte  Daglish/  that,  so  far  as  respects  the 
fixtures,  the  instrument  requires  to  registered  under  the  Bills 
of  Sale  Act.  It  had  been  decided  in  Hawtry  v.  Butlin,^  affirming 
the  decision  of  Vice  Chancellor  Malins  in  Begbie  v.  Fenwick,^ 
that  where  a  lessee  makes  a  mortgage  by  way  of  under-lease, 
and  then  by  a  separate  testatum  assigns  the  fixtures,  the  assign- 
ment of  the  fixtures  is  a  *bill  of  sale  under  the  Bills  of  [*328] 
Sale  Act.  In  Ex  parte  Daglish  we  carried  the  principle  of 
that  decision  one  step  further,  because  in  that  case  the  premises 
only  were  demised;  but  then  the  power  of  sale,  according  to 
what  we  considered  its  true  construction,  enabled  the  mort- 
gagee, if  he  pleased,  to  take  possession  of  the  premises  with 
the  fixtures,  and  to  sever  the  fixtures  from  the  premises,  and 
sell  the  fixtures  separately,  and  then  although  it  might  be  said 
that  there  was  no  assignment  of  the  fixtures  in  that  case,  yet 
there  was,  as  we  thought,  a  power  to  take  possession  of  them  as 
security  for  the  debt;  and  by  the  express  provisions  of  the 
Bills  of  Sale  Act,  the  power  to  take  possession  of  'personal 
chattels, '  which  is  construed  to  include  fixtures,  as  a  security  for 
a  debt,  is  to  be  considered  a  bill  of  sale  within  the  Bills  of  Sale. 
Act.  But  in  the  present  case  I  am  of  opinion  that,  according 
to  the  true  construction  of  this  mortgage  deed,  the  mortgagee 
had  no  power  to  sever  the  fixtures  from  the  premises  and  to 
sell  them  separately,  but  could  only  sell  the  premises  with  the 
fixtures  upon  them.  I  agree  that  the  words  'to  sell  the  same 
either  together  or  in  parcels,'  only  refer  to  the  distinction  be- 
tween the  public  house  and  the  cottages,  and  were  not  intended 
to  enable  the  fixtures  to  be  sold  separately  from  the  premises." 
From  these  cases  it  appears  that  in  the  case  of  a  mortgage 
of  land  with  the  fixtures  thereon,  whether  the  mortgagor's 
interest  in  the  land  is  freehold,  leasehold'*  or  copyhold,  if  the 

iL.  R.,  8  Ch.,  1072. 

2  L.  R.,  8  Q.  B.,  290. 

3L.  R.,  8  Ch.,  1075  (n.). 

4  In  Boyd  v.  Shorrock,  L.  R.,  5  Eq.,  72  (1867)  ;  s.  C,  37  L.  J.,  Ch.,  144; 
17  L.  T.  (N.  S.),  197;  16  W.  R.,  102,  it  was  held,  that  looms  put  up  by  a 
lessee  for  years  of  a  cotton-mill  for  his  own  convenience  during  his  term, 
and  fastened  to  the  flag  pavement  in  the  mill  by  nails  driven  through  holes 
in  the  loom  feet,  into  wooden  plugs  fitted  into  holes  cut  in  the  pavement, 
32  497 


•328  THE  LAW  OP  FIXTURES.  [cHAP.  IX. 

though  easily  removable  without  injury  to  themselves  or  the  freehold,  were 
fixtures  passing  by  an  assignment  of  the  "plat  of  land,  mill,  fixed  machin- 
ery, and  hereditaments  comprised  in  the  lease,  etc.,  together  with  all  and 
singular  the  looms  and  other  machinery  whether  fixed  or  movable;"  and 
that  they  passed  as  fixtures  attached  to  the  property  during  the  tenant's 
interest  therein  and  not  as  chattels  by  virtue  of  the  express  words;  and 
hence  that  the  indenture  as  to  them  did  not  require  registration  under 
the  Bills  of  Sale  Act.  In  this  case  Wood,  V.  C,  said :  "On  the  best 
consideration  I  can  give  to  this  case,  having  looked  into  the  various  au- 
thorities referred  to,  I  can  come  to  no  other  conclusion  than  that  the 
principle  enunciated  in  Ex  parte  Barclay  [5  DeG.  M.  &  G.,  403  (1855)]  is 
the  right  one.  That  principle,  which  I  followed  in  Mather  v.  Fraser  [2 
Kay  &  J.,  536  (1856)],  seems  to  me  to  be,  that  if  the  tenant  has  affixed 
to  the  freehold,  during  his  tenancy,  articles  in  such  a  manner  as  to  make 
it  appear  that  during  the  term  they  are  not  to  be  removed,  and  that  he 
regards  them  as  attached  to  the  property,  according  to  his  interest  in  the 
property,  then  on  any  dealing  by  him  with  the  property  to  which  these 
articles  are  affixed,  the  court  would  presume  that  he  meant  to  deal  with 
the  property  as  it  stood,  with  all  these  things  so  attached,  and  to  pass 
the  property  in  its  then  condition.  Now  the  intention  in  this  case  clearly 
was,  that  everything  should  pass.  These  particular  things  are  mentioned, 
but  that  is  not  the  immediate  contest  before  me.  In  what  character  do 
they  pass?  Were  they  intended  to  pass  as  fixtures  which  were  attached  to 
the  property  during  the  tenant's  interest  in  the  property,  or  were  they 
assigned  as  chattels  as  to  which  no  such  intention  (of  attaching  them)  can 
be  found  to  exist?  The  intention  of  the  deed  was  to  assign,  in  the  first 
place,  all  the  landlord's  fixtures,  and  then  other  fixtures  of  some  sort;  the 
language  used  being,  '  the  looms  and  other  machinery,  whether  fixed  or 
movable.'  Of  course  as  to  all  the  chattels  which  are  not  fixed,  they  would 
simply  pass  in  the  ordinary  way,  as  chattels,  by  way  of  assignment,  in 
the  nature  of  a  bill  of  sale,  which  would  require  registration.  As  to  all  the 
chattels  which  were  affixed  in  the  same  way  as  in  Ex  parte  Barclay,  it 
appears  to  me  that  they  were  intended  to  pass,  and  did  pass,  with  the  prop- 
erty. The  question  is,  whether  or  not  the  chattels  were  intended  to  be 
affixed  during  the  tenant 's  interest,  and  whether  he  passed  his  interest  in 
the  property  as  it  existed.  The  mortgage  was  not  intended  to  be  raised  by 
a  sale  of  the  fixtures,  and  there  could  be  no  power  in  the  mortgagor  of 
removing  them  during  the  time  the  mortgage  existed;  they  must  continue 
in  the  mill,  and  in  that  sense  they  must  be  affixed  to  the  mill. 

' '  These  cases,  of  course,  have  their  own  peculiar  difficulties,  but  the 
definition,  as  far  as  it  goes,  given  in  Ex  parte  Barclay  [5  DeG.  M.  &  G., 
410],  really  concludes  the  case:  'By  "fixtures"  we  understand  such  things 
as  are  ordinarily  affixed  to  the  freehold  for  the  convenience  of  the  occu- 
pier, and  which  may  be  removed  without  material  injury  to  the  freehold; 
such  will  be  machinery,  using  a  generic  term;  and  in  houses,  grates,  cup- 
boards, and  other  like  things. '  They  are  those  things  which  an  occupier  has 
put  up  for  his  own  convenience,  and  has  also,  for  his  own  convenience, 

498 


CHAP.  IX.]  REGISTRY  ACTS.  *329 

•fixtures  pass  as  a  part  of  the  land  and  for  no  greater  [*329] 
interest  than  the  mortgagor  has  in  the  land,  then  the  instrument 
does  not  require  registry  as  to  the  fixtures,  because  they  are 
not  *eonveyed  as  chattels,  but  as  a  part  of  the  realty.  [*330] 
But  if  the  mortgage  deals  with  the  fixtures  separately  from 
the  land,  as  by  the  use  of  a  separate  testatum;  or  in  any  other 
manner  the  instrument  manifests  an  intention  to  deal  with  the 

during  the  term,  or  during  the  existence  of  his  interest,  attached  to  the 
property  which  he  holds."     The  learned  judge  then  proceeds  to  show  that 
within  this  definition  the  looms  were  to  be  considered  fixtures  during  the 
time  the  tenants  retained  an  interest  in  the  term,  and  deduces  the  conclu- 
sion that  they  passed  with  the  property  as  fixtures.     The  mortgage  in  this 
case  contained   a  power   for  the   defendants   after  notice   to   sell   all  the 
machinery  and  other  premises  of  a  like  nature  either  together  with  the 
buildings  or  land  to  or  upon  which  the  same  should  be  fixed,  or  separately 
and  detached  therefrom.      (See  the  case  as  reported  in   37  L.  J.,   Ch.,  p. 
145.)     And  the  case  is  therefore  in  direct  conflict  on  this  point  with  the 
cases  hereinbefore  cited,  and  may  so  far  as  it  decides  that,  notwithstand- 
ing the  power  contained  in  the  mortgage  of  selling  the  fixtures  separately 
from  the  land,  registration  was  not  required,  be  considered  as  overruled. 
See  Begbie  v.  Fenwick,  L.  R.,  8  Ch.  App.,  1075    (n)    (1866);   Hawtry  v. 
Butlin,  L.  E.,  8  Q.  B.,  290   (1873)  ;  Ex  parte  Daglish,  L.  E.,  8  Ch.  App., 
1083  (1873);  Ex  parte  Barclay,  L.  E.,  9  Ch.  App.,  576  (1874).     See,  also, 
Holland  v.   Hodgson,  L.   E.,   7   C.   P.,   334    (1872).     The  attention   of  the 
court  does  not  seem  to  have  been  drawn  to  this  point,  and  in  other  respects 
(considering  this  fact  as  out  of  the  case),  the  case  is  believed  to  be  a  cor- 
rect exposition  of  the  law;  indeed,  the  case  seems  to  have  been  reasoned 
as  if  the  above  facts  did  not  exist,  for  it  is  stated  by  the  court  that  ' '  the 
mortgage  was  not  intended  to  be  raised  by  sale  of  the  fixtures. ' ' 

That  the  rule  stated  in  the  text  applies  to  leasehold  property,  see,  also 
The  Patent  Peat  Co.,  17  L.  T.  (N.  S.),  69  (1867);  Ee  Dawson,  Tate  & 
Co.,  Ir.  E.,  2  Eq.,  218   (1868)  ;     S.  C,  16  W.  E.,  424. 

The  case  of  Meux  v.  Allen,  or  Meux  v.  Jacobs,  23  W.  E.,  526  (1875) ; 
8.  c,  L.  E.,  7  Eng.  &  Ir.  App.,  481 ;  44  L.  J.,  Ch.,  481 ;  22  W.  E.,  609, 
where  it  was  held  by  the  Master  of  the  Eolls  (following  Ex  parte  Daglish), 
that,  where  a  lessee  demised  by  way  of  mortgage  a  leasehold  public  house 
to  his  brewers  for  the  residue  of  his  term  except  the  last  day,  the  instru- 
ment as  regards  trade  fixtures  included  in  the  demise  of  the  premises  to 
which  they  were  attached,  the  trade  fixtures  not  being  mentioned  in  such 
demise  but  passing  by  operation  of  law  as  affixed  to  the  premises,  re- 
quired registration  under  the  Bills  of  Sale  Act,  seems  clearly  erroneous. 
See,  also,  Brown,  Fixt.   (3d  pd.),  5  171,  D. 

[See  Warner  v.  Don,  26  Can.,  388  (1896),  affirming  Don  v.  Warner,  28 
Nova  S.,  202,  204  (1896),  where  the  Nova  Scotia  act  copies  the  English 
"Bills  of  Sale  Act."] 

499 


*331  THE  I.AW  OF  FIXTURES.  [CHAP.   IX. 

fixtures  separately  from  and  as  disconnected  with  the  land;  or 
if,  while  only  a  limited  interest  in  the  land  is  conveyed,  an  abso- 
lute interest  in  the  fixtures  is  conveyed,  or  there  is  a  power  to 
sever  the  fixtures  from  the  land,  and  to  sell  them  for  an  absolute 
interest  extending  beyond  the  interest  of  the  mortgagor  in  the 
land  with  which  they  are  connected,  then  as  to  the  fixtures  the 
instrument  comes  within  the  Bills  of  Sale  Act  and  must  be  regis- 
tered. In  the  cases  last  mentioned,  the  creating  an  absolute  in- 
terest in,  or  power  to  sever  the  fixtures  and  sell  them  for  an 
absolute  interest  extending  beyond  the  interest  of  the 
[*331]  *mortgagor  in  the  land,  besides  coming  within  the  policy 
of  the  act,  manifests  an  intention  as  to  such  excess  of  interest  in, 
or  power  over  the  fixtures,  to  deal  with  them  as  personal 
chattels  separately  from  the  land,  which,  of  course,  comes  within 
the  meaning  of  the  act. 

But  where  the  power  to  dispose  of  the  fixtures  is  only  to  sell 
them  as  connected  with  the  land  and  as  parcel  thereof,  and  for 
no  greater  interest  than  the  mortgagor  has  in  the  land,  as  in  the 
case  of  Ex  parte  Barclay,  then  no  registration  is  required. 

However,  as  respects  those  articles  sometimes  though  im- 
properly called  fixtures,  which  even  while  in  a  quasi  connec- 
tion with  the  land  remain  mere  chattels  not  passing  with  the 
land  to  the  heir  or  grantee,  registration  would  seem  to  be  as 
necessary  as  in  the  case  of  any  other  chattels. 

In  the  United  States  this  subject  does  not  seem  to  have  been 
much  considered  by  the  courts  except  in  questions  between 
purchasers  (with  or  without  notice)  of  the  land  whereon  the 
fixtures  are  situated,  and  chattel  mortgages,  etc.,  of  the  fixtures, 
a  subject  which  has  already  been  treated  in  this  chapter.  It 
has,  however,  been  held  that  a  building  erected  by  a  tenant  in 
part  for  trade  purposes  and  therefore  held  removable  by  him 
as  against  his  landlord,  is  personal  property,  and  hence  subject 
to  all  the  rules  of  personalty  as  to  the  recording  of  liens  on 
chattels;  and  therefore,  that  where  a  lease  provided  that  all 
unpaid  rents  and  taxes  should  be  a  special  lien  upon  all  im- 
provements and  buildings  which  might  be  erected  upon  the 
premises,  and  that  no  such  improvements  or  buildings  should 
be  removed  from  said  premises  while  any  rents  vrhich  should 
have  become  due  were  unpaid,  or  any  taxes  remained  unpaid 

500 


CHAP.  IX.]  REGISTRY   ACTS.  *331 

upon  the  same,  which  lease  was  not  put  upon  record,  it  could 
not  affect  the  rights  of  one  taking  without  notice  a  chattel  mort- 
gage upon  a  building  subsequently  erected,  which  mortgage  had 
been  duly  recorded,  such  mortgagee  securing  by  his  mortgage  a 
lien  upon  the  building  and  an  equity  superior  to  tlie  claim  of 
the  lessor  under  the  provisions  of  the  lease.^ 

1  Lanphere  v.  Lowe,  3  Xeb.,  131  (1873).  The  court,  however,  in  arriv- 
ing at  this  conckision,  also  relied  upon  the  fact  that  the  provision  in 
question  was  not  a  contract  between  landlord  and  tenant  whereby  they 
mutually  agreed  that  the  tenant  should  erect  certain  buildings,  and  that 
the  landlord  should  have  an  interest  in  them  to  the  extent  of  all  unpaid 
rent  and  taxes,  but  an  effort  on  the  part  of  the  landlord  to  create  a  lien, 
somewhat  in  the  nature  of  a  chattel  mortgage,  upon  a  something  not  in 
esse,  and  that  a  valid  charge  cannot  be  made  upon  a  thing  not  in  existence. 
If  the  building  in  this  case,  which  was  erected  for  a  dwelling  and  house 
of  trade  and  set  on  blocks  without  a  cellar  or  foundation,  is  to  be  consid- 
ered as  a  trade  fixture,  and  not  a  mere  ordinary  chattel  in  every  respect, 
the  decision  of  the  court  seems  opposed  to  the  weight  of  authority,  both  in 
England  and  the  United  States,  as  it  certainly  is  by  the  clear  weight  of 
English  authority,  where  trade  fixtures  are  considered  while  annexed  as  in 
many  respects  parcel  of  the  realty.  See  the  cases  cited  in  this  and  the 
succeefling  section.  The  case  seems  in  other  respects  somewhat  unsatis- 
factory.    [See  Booth  v.  Oliver,  67  Mich.,   664,  669    (1888).] 

But  where  the  owner  of  real  estate  perpetually  leased  the  same,  together 
with  the  factory  and  buildings  thereon,  and  all  the  machinery,  fixtures, 
appurtenances  and  utensils  belonging  to  said  factory,  reserving  in  the 
deed  of  lease  a  lien  upon  the  demised  premises  and  the  improvements 
thereon  for  the  purchase  money  and  rents,  but  with  liberty  to  the  lessee 
at  any  time  to  remove  at  pleasure  any  portion  of  the  machinery,  upon 
condition  that  he  should  at  the  time  of  removal  substitute  other  machin- 
ery in  its  i)]ace,  of  equal  or  greater  value.  Held,  that  as  between  the 
parties  the  property  demised  was  to  bo  regarded  as  a  unit  and  the  ma- 
chinery, etc.,  as  appurtenant  to  and  forming  a  part  of  the  real  estate;  and 
that  to  the  extent  of  the  reservation  the  proporty  never  passed,  and  hence 
that  the  lien  was  not  in  legal  effect  a  chattel  mortgage  requiring  to  be 
verified  snid  filed  as  such;  that  the  power  to  remove,  etc.,  was  a  mere 
power  to  repair  and  not  as  indicating  absolute  ownership;  and  that  the 
machinery  not  having  been  removed  by  the  lessee,  the  lessor's  lien  was 
superior  to  attacliing  creditors  of  lessee.  Mctcalf  v.  Fosdick,  23  Ohio  St., 
114   (1872).      [See  Church  v.  Laj.hnm,  94  App.,  5i50    (N.  Y.,  1904).] 

[A  lease  reserving  a  lieu  by  the  lessor  unless  recorded  as  a  chattel  mort- 
gage, will  not,  under  the  statute,  affect  a  niortgagoo  of  the  IcasohoM,  as 
to  stnicturoH  erected  by  the  lessee.  First  Nat.  Bank  v.  Adam,  138  Til., 
483   (1891).] 

[In  California,  under  the  Civil  Codo,  a  mortgage  of  land  together  "with 

501 


^332  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 


[*332]  V.    Bankruptcy,  etc. 

The  various  statutes  on  the  subject  of  bankruptcy  have  given 
occasion  to  numerous  cases  respecting  fixtures,  depending  on 
the  peculiar  nature  and  qualities  of  this  kind  of  property. 

The  11th  section  of  the  Statute,  21  James  I,  c.  19  {aimo  1623), 
under  which  the  earlier  of  these  cases  arose,  with  the  recital 
preceding  it  is  as  follows:  "And  for  that  it  often  falls  out, 
that  many  persons  before  they  become  bankrupts,  do  convey 
their  goods  to  other  men  upon  good  consideration,  yet  still  do 
keep  the  same,  and  are  reputed  the  owners  thereof,  and  dispose 
the  same  as  their  own, 

the  rents,  issues  and  profits  thereof,"  must  be  recorded  as  a  chattel  mort- 
gage to  be  valid  as  against  a  subsequent  chattel  mortgagee  of  the  growing 
crops.     Simpson   v.   Ferguson,   112   Cal.,   180    (1896).] 

[Where  a  landowner  built  a  railroad  upon  his  land  and  entered  into  a 
contract  of  sale  thereof  with  a  licensee  of  the  land,  the  landowner  reserv- 
ing title  in  the  railroad  until  fully  paid  for,  such  railroad  is  not  goods 
and  chattels  within  a  statute  requiring  such  contracts  to  be  recorded  in 
order  to  be  valid  as  against  creditors  of  the  buyer.  Webster  Lumber  Co. 
V.  Keystone  Lumber  Co.,  51  W.  Va.,  545   (1902).] 

[Where,  by  contract,  a  lien  is  given  to  a  grantor  of  land  by  his  grantee 
upon  fixtures  to  be  erected  by  the  grantee,  said  contract  not  being  re- 
corded, the  grantor  has  no  priority  by  claiming  an  interest  in  realty  as 
against  subsequent  bona  fide  chattel  mortgagees.  St.  Joseph  Co.  v.  Wil- 
son, 133  Ind.,  465  (1892).] 

[A  mortgage  of  a  leasehold  including  a  building  which  the  lessee  has 
the  right  to  remove,  is  a  mortgage  of  realty.  McLeod  v.  Barnum,  131 
Cal.,  605,  606  (1901).] 

[A  shop,  which  a  tenant  at  will  has  the  right  to  remove,  is  properly 
mortgaged  as  realty.     Stafford  v.  Adair,  57  Vt.,  63,  66   (1885).] 

[Where  a  statute  treats  machinery  as  real  estate  when  mortgaged  with 
the  building,  a  mortgage  of  the  machinery  alone,  if  made  in  good  faith 
and  as  required  by  the  statute  applying  to  real  estate,  is  valid  as  against  a 
trustee  in  insolvency  of  the  mortgagor.  Morris  v.  Grinnell,  51  Conn.,  481 
(1883).] 

[A  grain  elevator  upon  stone  foundations  set  in  the  ground,  which,  by 
agreement,  the  tenant  has  the  right  to  remove,  is  a  chattel  real,  which, 
under  Sec.  38,  Chap.  30,  Eevised  Statutes,  is  classed  as  real  estate  for  the 
purpose  of  conveyance  or  mortgage.  Knapp  v.  Jones,  38  111.  App.,  489 
(1890),  affirmed  143  111.,  375  (1892).] 

[See  Gill  v.  Weston,  110  Pa.  St.,  305,  310  (1885),  as  to  a  mortgage  of 
a  leasehold  with  the  fixtures  having  the  same  effect,  by  statute,  as  a 
mortgage  of  the  freehold.] 

502 


CHAP.  IX.]  BANKRUPTCY,  ETC.  *333 

*"XI.  Be  it  enacted,  that  if  at  any  time  hereafter  [*333] 
any  person  or  persons  shall  become  bankrupt,  and  at  such  time 
as  they  shall  so  become  bankrupt  shall  by  the  consent  and  per- 
mission of  the  owner  and  proprietary  have  in  their  possession, 
order  and  disposition,  any  goods  or  chattels,  whereof  they  shall 
be  reputed  owners,  and  take  upon  them  the  sale,  alteration  or  dis- 
position as  owners,  that  in  every  such  case  the  said  commissioners 
or  the  greater  part  of  them  shall  have  power  to  sell  and  dispose 
the  same,  to  and  for  the  benefit  of  the  creditors  which  shall 
seek  relief  by  the  said  commission,  as  fully  as  any  other  part 
of  the  estate  of  the  bankrupt." 

This  section  was  substantially  re-enacted  in  the  statute,  6 
Geo.  IV.,  c.  16,  s.  72  (anno,  1825),  which  is  as  follows:  "And 
be  it  enacted  that  if  any  bankrupt  at  the  time  he  becomes 
bankrupt,  shall,  by  the  consent  and  permission  of  the  true 
owner  thereof,  have  in  his  possession,  order  or  disposition  any 
goods  or  chattels,  whereof  he  was  reputed  owner,  or  whereof 
he  had  taken  upon  him  the  sale,  alteration  or  disposition  as 
owner,  the  commissioners  shall  have  power  to  sell  and  dispose  of 
the  same  for  the  benefit  of  the  creditors  under  the  commission." 

This  section  of  6  Geo.  IV.,  c.  16,  was  in  turn  in  1836,  in  6 
W.  IV.,  e.  14,  s.  86,  and  this  in  turn  in  1849,  in  sec,  125  of  the 
Consolidation  Act,  12  &  13  Vict.,  c.  106,^  re-enacted  in  almost 
the  same  terms  last  above  quoted;  and  these  several  sections 
are  so  similar  in  terms,  that  the  decisions  under  the  earlier 
acts  may  be  regarded  as  authorities  in  the  construction  of  the 
later. 

In  the  construction  of  these  acts  it  has  very  generally  been 
held,  and  may  be  regarded  as  well  settled,  that  fixtures  are  not 
goods  and  chattels  within  the  meaning  of  said  acts.  The  (jues- 
tion  in  the  majority  of  cases  has  arisen  on  the  bankruptcy  of 
the  mortgagor  of  premises  and  fixtures  who  had  boon  suffered 
to  remain  in  possession  of  both  the  premises  and  fixtures  after 
the  execution  of  tiie  mortgage.  And  the  (juestion  in  such  cases 
has  been  whether  the  fixtures  passed  to  the  assignees  as 
•a  part  of  the  goods  and  chattels  of  the  bankrupt,  or  [*334] 
as  being  in  his  reputed  ownership  at  the  time  of  the  bankruptcy; 

i  See,  however,  the  Bills  of  Sale  Aet,  ante,  p.  *.321  note;  particularly 
the  interpretation  clause   (sec.  7),  which  changes  the  rule  to  some  extent. 

503 


*335  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

or  whether  they  passed  to  the  mortgagee  as  parcel  of  the  mort- 
gaged estate.  And  on  this  question  there  is  no  doubt  whatever 
that  fixtures,  such  as  would  otherwise  pass  to  the  mortgagee  with 
the  land  as  a  part  of  his  security,  are  not  goods  and  chattels 
within  said  acts.^  And  the  rule  is  the  same  whether  the  mort- 
gage is  of  a  freehold  interest  in  the  land,^  or  only  of  a  lease- 
hold.-* So,  also,  though  the  fixtures  in  question  are  removable 
trade  or  other  tenant's  fixtures.'* 

A  distinction  has,  however,  been  taken  by  some  of  the  judges 
[*335]  of  the  English  courts  of  bankruptcy  between  trade  *fix- 
tures  erected  by  a  tenant  and  removable  by  him  without  dam- 
age to  the  freehold,  and  similar  annexations  made  by  the  owner 

2Ryall  V.  Eolle,  1  Atk.,  165  (1749)  ;  s.  C,  1  Ves.  Sr.,  348,  375,  on  further 
directions;  the  articles  in  this  case  were  described  as  coppers  and  utensils 
fixt,  which,  together  with  his  house,  etc.,  were  demised  by  a  brewer  by  way 
of  mortgage,  he  remaining  in  possession  till  his  bankruptcy;  Fletcher  v. 
Manning,  1  C.  &  K.,  350  (1844),  mill-machinery;  Rufford  v.  Bishop,  5 
Kuss.,  346  (1829);  s.  C,  7  L.  J.,  Ch.  108;  Pim  v.  Grazebrook,  4  Scott's 
N.  E.,  565  (1842).  See,  also.  Ex  parte  Acton,  4  L.  T.  (N.  S.),  261  (1861)  ; 
Hitchman  v.  Walton,  4  M.  &  W.,  409,  414    (1838). 

^  Ex  parte  Cotton,  2  Mont.  Dea.  &  DeG.,  725  (1842);  s.  C,  6  Jur.,  1045; 
Cullwick  V.  Swindell,  L.  R.,  3  Eq.,  249  (1866);  s.  c,  36  L.  J.,  Ch.,  173; 
15  W.  R.,  216;  Ex  parte  Scarth,  1  Mont.  Dea.  &  DeG.,  240  (1840);  s.  c, 
9  L.  J.  (N.  S.),  Bank.,  35;  Hubbard  v.  Bagshaw,  4  Sim.,  326  (1831);  9 
L.  J.  Chanc,  190. 

*Ex  parte  Belcher,  2  Mont.  &  Ayr.,  160  (1835);  s.  c,  4  Dea.  &  Cbit., 
703;  4  L.  J.  (N.  S.),  Bank,  where  the  owner  in  fee  mortgaged  for  a  term 
of  years,  but  remained  in  possession,  annexed  fixtures  removable  as  be- 
tween landlord  and  tenant,  but  which  were  held  to  pass  to  mortgagee; 
Clark  V.  Crownshaw,  3  B.  &  Ad.,  804  (1832);  Boydell  v,  McMichael,  1  Cr. 
M.  &  R.,  177  (1834);  s.  c,  3  Tyrwh.,  974;  3  L.  J.  (N.  S.),  Exeh.,  264; 
Ex  parte  Wilson,  2  Mont.  &  Ayr.,  61  (1835);  s.  c,  4  Dea.  &  Chit.,  143; 
Ex  parte  Acton,  4  L.  T,  (N.  S.),  261  (1861);  Ex  parte  Barclay,  5  DeG. 
M.  &  G.,  403  (1855);  s.  c,  1  Jur.  (N.  S.),  1145;  25  L.  J.,  Bank.,  1;  35 
Eng.  L.  &  Eq.,  169. 

5  See,  Minshall  v.  Lloyd,  2  M.  &  W.,  450   (1837);  Boydell  v.  McMichael, 

1  Cr.  M.  &  R.,  177  (1834).  Ex  parte  Broadwood,  1  Mont.  Dea,  &  DeG., 
631  (1841);  The  Patent  Peat  Co.,  17  L.  T.  (N.  S.),  69  (1867);  Ex  parte 
Montgomery,  4  Ir.  Ch.,  520  (1855)  ;  Ex  parte  Bentley,  2  Mont,  Dea.  &  DeG., 
591  (1842);  s.  C,  6  Jur.,  719;  Ex  parte  Reynal,  2  Mont,  Dea  &  DeG., 
443,  461  (1841);  Ex  parte  Heathcote,  2  Mont.  Dea.  &  DeG.,  711  (1842); 
Ex  parte  Barclay,  5  DeG.  M.  &  G.,  403  (1855) ;  see,  also,  Ex  parte  Cotton, 

2  Mont.  Dea.  &  DeG.,  729  (1842) ;  In  re  Dawson,  Tate  &  Co.,  Ir.,  R,,  2 
Eq.,  218   (1868);  s.  c,  16  W.  R.,  424. 

504 


CHAP.  IX.]  BANKRUPTCY,   ETC,  *335 

of  the  freehold  to  his  own  estate.**  This  distinction,  however, 
does  not  seem  to  have  received  the  support  of  the  weight  of 
authority  either  American  or  English. 

The  rule  is  the  same,  also,  though  the  mortgage  is  an  equit- 
able one  by  deposit  of  title  deeds  or  lease.'^     The  reason  of 

6  In  Ex  parte  Austin,  1  Dea.  &  Chit.,  207  (1832),  Sir  G.  Rose  expressed 
the  opinion  that  ' '  where  flstures  are  capable  of  removal  as  between  land- 
lord and  tenant  without  injury  to  the  freehold,  they  are  within  the  order 
and  disposition  of  the  bankrupt. ' '  The  rest  of  the  court,  however,  de- 
clined to  express  an  opinion  on  the  point. 

So,  in  In  re  Trevey,  14  L.  T.  (N.  S.),  193  (1866),  (Irish  Court  of 
Bankruptcy),  Lynch,  J.,  said:  "But  I  am  of  opinion  that  this  distinction" 
[in  Minshall  v.  Lloyd,  that  trade  fixtures  are  not  goods  and  chattels  within 
the  bankrupt  law,  though  such,  when  made  so  by  the  tenant 's  severance  or 
for  the  benefit  of  execution  creditors]  ' '  is  not  to  be  accepted  as  settled 
on  a  due  consideration  of  the  cases,  and  that  the  exception  made  for  the 
benefit  of  trade  and  for  the  benefit  of  creditors,  whereby  removable  fixtures 
which  become  changeable  into  the  condition  of  chattels  by  the  tenant  him- 
self, are  held  to  be  chattels  for  his  creditors  will  be  held  to  apply  for  the 
benefit  of  his  general  creditors,  as  well  as  for  the  benefit  of  a  particular 
creditor  who  has  sued  him  to  execution.  If  for  the  benefit  of  creditors  they 
are  chattels,  surely  they  ought  then  to  be  sold  within  this  section;"  citing 
Walmsley  v.  Milne,  7  C.  B.  (N.  S.),  132  (1859),  This  dictum  was  not, 
however,  necessary  to  the  decision  of  the  case,  as  the  articles  in  question 
(machines  kept  in  place  only  by  their  own  weight  and  worked  by  belts) 
were  held  to  be  mere  chattels,  and  hence  passed  to  the  assignee.  See,  also. 
Ex  parte  Belcher,  2  Mont.  &  Ayr.,  167  (1835)  ;  Ex  parte  Wilson,  2  Mont, 
&  Ayr.,  70  (1835)  ;  Ex  parte  Lloyd,  1  Mont.  &  Ayr.,  494,  506  (1834)  ;  s.  c, 
3  Doa.  &  Chit.,  765;  3  L.  J.  (N.  S.),  Bank.,  108;  Ex  parte  King,  1  IMont. 
Dea.  &  DeG.,  119  (1840)  ;  s.  c,  4  Jur.,  510.  This  was  a  case  of  a  vendor's 
lien  sought  to  be  enforced  on  a  house  and  fixtures  sold  with  the  lease.  The 
fixtures  were  common  tenant's  fixtures.  Tlic  court  was  equally  divided  as 
to  whether  the  fixtures  passed  to  the  assignee. 

7  See  Ex  parte  Lloyd  (supra)  ;  Ex  parte  Wilson,  2  Mont.  &  Ayr.,  61 
(1835);  s,  c,  4  Dea,  &  Chit,,  143;  Ex  parte  Heathcote,  2  Mont,  Dea,  & 
DeG.,  711  (1842);  s.  c,  6  .lur.,  1001;  Ex  parte  Acton,  4  L.  T.  (N.  S.), 
261  (1861)  ;  Ex  parte  Rcynal,  2  :\Iont.  Dea.  &  DeG.,  443  (1841)  ;  Ex  parte 
Barclay,  5  DeG.  M.  &  G.,  403  (1855);  s.  c,  1  Jur.  (N.  S.),  1145;  25  L. 
J.,  Bank.,  1;  35  Eng.  Law  &  Eq.,  169;  Ex  parte  Broadwood,  1  Mont,  Dea. 
&  DeG.,  631    (1841). 

In  Tebb  v.  Hodge,  L.  R.,  5  C.  P.,  73  (1869)  ;  s.  c.  39  L.  J.,  C.  P.,  56; 
38  L.  J.,  C.  P.,  217,  the  plaintiff  agreed  to  let  to  B.  certain  premises  which 
B.  was  to  fit  up  forthwith  as  a  first  class  luncheon-bar  and  restaurant, 
Huch  fittings  to  be  of  the  value  of  £500  at  least,  ami  to  ho  compIctc(l  to 
the  satisfaction  of  plaintiff  on  a  certain  day  (time  in  this  respect  to  be  of 

505 


*33G  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

[*336]  *the  rule  in  each  of  the  above  eases  obviously  is  that 
fixtures  during  the  time  of  their  annexation  are  parcel  of  the 
realty,  and  hence  cannot  be  goods  and  chattels.^ 

It  has  also  been  held  that  trade  fixtures  actually  annexed  to 
the  land,  do  not  pass  to  the  assignee  as  being  chattels  within 
[*337J  *the  order  and  disposition  of  the  bankrupt  at  the  time 
of  the  bankruptcy  with  the  consent  of  the  true  owner,  though 

the  essence  of  the  contract).  B.  was  to  pay  £1,000  as  a  premium  for  the 
lease,  upon  payment  of  which,  said  premises  being  so  fitted  up,  the  plaintiff 
was  to  grant  said  lease  and  to  lend  or  obtain  for  B.  upon  security  of  the 
premises  so  fitted  up  £1,000.  It  was  also  mutually  agreed  that  if  B.  should 
fail  to  carry  out  any  of  the  stipulations  or  conditions  therein,  etc.,  or 
should  the  premises  not  be  fitted  up  in  the  manner  and  within  the  time 
specified,  etc.,  plaintiff  might  re-enter.  Before  the  lease  was  granted  or 
the  money  paid,  B.  became  bankrupt  and  his  assignee  seized  and  sold 
the  fittings  and  fixtures  under  order  of  the  Court  of  Bankruptcy:  Reld, 
that  until  the  lease  was  executed  the  agreement  was  to  be  a  security  to  the 
plaintiff  for  all  that  he  was  entitled  under  it,  that  plaintiff  became  the 
equitable  mortgagee  of  the  premises  with  the  fittings  and  fixtures,  that  de- 
fendants had  no  right  to  sell  them  under  the  adjudication  in  bankruptcy, 
and  that  the  fixtures  were  not  goods  and  chattels  in  the  order  and  dispo- 
sition of  the  bankrupt  with  the  consent  of  the  true  owner  thereof  within 
sec.  125  of  Bankrupt  Consolidation  Act  of  1849. 

So,  in  Ex  parte  Thompson,  8  Jur.,  633  (1844)  ;  s.  C,  13  L.  J.,  Ch.,  354, 
A.,  by  a  written  memorandum,  made  an  equitable  mortgage  to  B.  of  prem- 
ises held  by  A.  under  a  lease  for  a  term  of  years  (to  secure  the  renewal  of 
which  the  lessor  had  executed  a  penal  bond  to  the  lessees),  including  cer- 
tain fixtures  belonging  to  A.  The  term  having  expired,  A.  occupied  for  a 
time  as  tenant  from  year  to  year,  and  then,  a  negotiation  taking  place  for 
a  renewal  of  the  lease,  the  old  lease  was  delivered  over  to  the  agent  of 
the  lessor  under  the  agreement  that  any  new  lease  to  be  executed  should  be 
deposited  with  B.  as  a  continuing  security,  and  a  counterpart  of  such  new 
lease  executed  by  A.  was  delivered  to  B.  upon  an  undertaking  that  the 
new  lease  when  delivered  by  the  lessor  should  be  deposited  with  him,  B. 
But  before  such  new  lease  was  delivered  over  by  the  lessor,  A.  became 
bankrupt,  and  the  lease  became  forfeited.  A.  was  in  possession  of  the 
fixtures  which  were  sold  by  his  assignees:  Held,  that  whatever  interest 
the  lessee  had  during  his  tenancy  from  year  to  year  was  in  equity  the  in- 
terest of  B.,  and  was  sufficient  to  maintain  his  lien  upon  the  fixtures, 
which  were  a  part  of  that  interest,  and  that  the  assignees  had  no  right  to 
the  fixtures. 

8  Boydell  v.  McMichael  (supra)  ;  Ex  parte  Montgomery  (supra) ;  Horn 
V.  Baker,  9  East,  215  (1808).  See,  however,  another  ground  stated  in 
Ex  parte  Lloyd,  3  Dea.  &  Chit.,  765  (1834)  ;  s.  c,  1  Mont,  and  Ayr.,  494; 
3  L.  J.   (N.  S.),  Bank.,  108,  per  Erskine,  C.  J. 

506 


CHAP.   IX.]  BANKRUPTCY,   ETC.  *338 

they  have  been  mortgaged  separately  from  the  leasehold  interest 
of  the  mortgagor  in  the  land,  and  thereby  constructively  severed 
,nd  converted  into  personalty.^  However  in  Ex  parte  Sykes/^ 
the  petition  of  the  mortgagee  to  have  the  benefit  of  his  security 
in  such  a  case,  was  dismissed  with  costs  by  Sir  Knight  Bruce, 
V.  C,  upon  the  mortgagee's  declining  to  file  a  bill  to  try  the 
question,  the  V.  C.  observing  that  he  was  unwilling  in  the  juris- 
diction in  bankruptcy  to  extend  the  rule  relating  to  order  and 
disposition ;  and  the  question  does  not  seem  to  be  settled. 

The  rule  is  the  same  also  where  the  question  arises  between 
other  parties  than  the  mortgagee  and  the  assignee  in  bankruptcy 
of  the  mortgagor.  Thus,  in  the  case  of  Horn  v.  Baker,ii  ^hich 
is  a  leading  case  in  this  branch  of  the  law  of  fixtures,  the  ques- 
tion arose  between  the  lessor  of  the  bankrupts  and  their  as- 
signees in  bankruptcy.  In  that  case  certain  stills  and  vats 
which  had  formerly  belonged  to  the  firm  of  which  the  lessor 
and  one  of  the  bankrupts  were  members,  were  leased  together 
with  a  distill-house  to  the  bankrupts  (successors  of  the  firm 
above  mentioned),  for  a  term,  with  liberty  to  the  lessees  to  pur- 
chase on  the  death  of  the  lessor  and  his  wife ;  the  lessees  after- 
wards became  bankrupt  while  yet  in  possession  of  the  stills  and 
vats,  and  upon  an  action  being  brought  against  the  *as-  [*338] 
signees  who  had  seized  and  sold  the  articles  in  question  as  part 
of  the  estate  of  the  bankrupts  it  was  held  that  the  stills,  which 
were  fixed  to  the  freehold,  being  set  in  brick-work  and  let  into 

9  Whitmore  v.  Empson,  23  Beav.,  313  (1856)  ;  s.  c,  3  Jur.  (N.  S.),  230; 
26  L.  J.,  Chanc,  364;  5  W.  R.,  217;  28  L.  T.,  300.  See,  also,  Ex  parte 
Spicer,  2  Deac,  335   (1837). 

10  18  L.  J.  (N.  S.),  Bank.,  16  (1849);  s.  C,  13  Jur.,  486. 

See,  also,  Trappes  v.  Barter,  2  Cr.  &  M.,  153  (1833);  s.  c,  3  Tyrwh., 
603;  3  L.  J.  (N.  S.),  Exch.,  24,  where  it  was  held  that  by  the  terms  of 
the  mortgage  deed  it  was  not  intended  that  the  fixtures  should  pass  with 
the  land,  and  having  been  treated  by  all  the  parties  as  personalty  they 
passed  to  the  assignee  as  part  of  the  personal  estate  of  the  bankrupt.  See, 
also,  Trappes  v.  Harter,  explained  in  Ex  jmrte  Barclay,  5  DcG.  ]\I.  &  G., 
403,  413,  414  (1855),  where  it  is  stated  that  the  order  and  disposition 
clause  of  the  statute  docs  not  ajjply  to  the  case  of  a  bankrupt  in  posses- 
sion of  his  own  goods,  but  is  confined  to  the  case  of  a  person  in  posses- 
sion of  the  goods  of  another. 

119  East,  215  (1808).  See,  ante,  p.  "12.  This  case  was  decided  upon 
the  authority  of  Ryall  v.  RoUe,  1  Atk.,  165   (1749). 

507 


•338  THE  LiVW  OP  FIXTURES.  [ciIAP.  IX. 

the  grouiul,  wore  not  goods  and  chattels  in  the  reputed  owner- 
ship of  the  bankrupts  within  the  Statute,  21  Jac.  I,  c.  19,  sec. 
10  &  11;  but  that  luovabk^  articles  not  fixed  passed  to  the  as- 
signees. In  delivering  the  judgment  Lord  EUenborough 
observed  that,  "the  true  object  of  the  Statute  21  Jac.  I,  c.  19, 
s.  10  &  11,  was  to  make  the  reputed  ownership  of  goods  and 
chattels  in  the  possession  of  bankrupts  at  the  time  of  their  bank- 
ruptcy, the  real  ownership  of  such  goods  and  chattels,  and  to 
subject  them  to  all  the  debts  of  the  bankrupt;  considering  that 
such  reputed  ownership  would  draw  after  it  the  real  sale,  order, 
alteration  and  disposition  of  the  goods;  that  the  stills,  as  it 
appeared,  were  fixed  to  the  freehold,  and  as  such  would  not 
pass  to  the  bankrupt's  assignees  under  the  description  of  goods 
and  chattels  in  the  Statute.  But,  that  as  to  the  vats  and  uten- 
sils [which  were  in  no  way  annexed  to  the  freehold],^-  there  was 

12  To  the  point  that  movable  machinery  and  other  articles  not  annexed 
to  the  realty  pass  to  the  assignees,  see,  also.  He  Trevey,  14  L.  T.  (N.  S.), 
193  (18G6);  Shuttleworth  v.  Hernaman,  1  DeG.  &  J.,  322  (1857);  s.  c, 
3  Jur.  (N.  S.),  1313;  26  L.  J.,  Bank.,  61;  Lingham  v.  Biggs,  1  B.  &  P., 
82  (1797) ;  Bryson  v.  Wylie,  Id.,  83  (note)  ;  Ex  parte  Newbery,  1  Lowell's 
Dec.,  386  (1869)  ;  Ex  parte  Astbury,  L.  E.,  4  Ch.  App.,  630  (1869)  ;  Whit- 
more  V.  Empson,  23  Beav.,  313  (1857).  See,  however,  the  case  of  con- 
structive annexation  referred  to,  post,  in  this  chapter. 

[A  builder  entered  into  an  agreement  with  a  freeholder  to  erect  houses, 
which  provided  that  the  builder  was  to  be  deemed  a  tenant  at  will;  that 
all  materials  and  plant  brought  upon  the  premises  were  to  be  deemed  an- 
nexed to  the  freehold.  Held,  as  between  the  freeholder  and  the  trustee 
in  bankruptcy  of  the  builder,  the  latter  was  entitled  to  any  plant  and 
materials  which  had  not  become  a  part  of  the  houses  at  the  date  of  the 
bankruptcy.     Txe  Weibking  [1902],  1  K.  B.,  713,  718.] 

[A  signboard  of  an  inn,  fastened  by  a  screw  to  the  wall,  being  valuable 
because  painted  by  a  celebrated  artist,  and  which  had  been  moved  to  dif- 
ferent parts  of  the  premises,  was  held  not  to  pass  to  the  assignee  as  against 
the  freeholder.  Ex  parte  D 'Eresby  (1881),  44  L.  T.  R.,  781,  reversing 
Ex  parte  Sheen  (1881),  43  L.  T.  E.,  638,  and  affirming  Ex  parte  D 'Eresby 
(1880),  22  Alb.  Law  J.,  382.] 

[A  contract  was  made  to  erect  two  petroleum  tanks,  twenty-six  feet 
deep  and  forty  feet  in  diameter,  upon  a  wharf.  They  were  built  of  steel 
plates  upon  a  concrete  foundation,  though  not  attached  thereto,  but  could 
not  be  moved  without  taking  them  to  pieces.  Before  the  tanks  were 
completed,  the  buyer  became  insolvent,  and  a  receiver  was  appointed. 
Held,  that  the  tanks  were  not  fixtures;  and,  while  incomplete,  the  property 
therein  remained  in  the  seller.    Bellamy  v.  Davey  [1891],  3  Ch.,  540.] 

508 


CHAP.   IX.]  BANKRUPTCY,   ETC.  *339 

nothing  in  the  case  to  rebut  the  reputed  ownership  following 
the  possession  of  the  bankrupts  after  the  dissolution  of  the 
old  firm,  when  the  business  was  continued  to  be  carried  on  by 
the  bankrupts  alone  in  the  same  manner  as  it  followed  the  pos- 
session of  the  antecedent  partnership  when  the  trade  was  carried 
on  by  John,  Robert  and  "Wm.  Horn.^^ 

*The  case  of  Horn  v.  Baker  has  been  generally  regarded  [*339] 
as  the  leading  authority  for  the  rule,  that  fixtures  during  their 
annexation  are  not  goods  and  chattels  within  the  meaning  of  the 
bankrupt  law,  not  only  in  questions  arising  between  parties 
sustaining  the  same  relations  as  the  parties  in  that  case,  but 
also  in  cases  where  the  parties  sustained  different  relations.^  ^ 
It  has  been  held  in  vsubsequent  cases  that  the  laAv  of  reputed 
ownership  is  not  applicable  to  fixtures,  the  property  of  the 
landlord,  let  with  the  premises  to  a  tenant  who  becomes  bank- 
rupt while  in  possession  thereof.^  ^     So,  where  the  lease  contains 

13  With  reference  to  tMs  subject  of  reputed  ownership,  Lord  Ellen- 
borough  in  the  same  case  observed:  "If  as  in  some  manufactories,  where 
the  engines  necessary  for  carrying  on  the  business  are  known  to  be  let  out 
to  the  several  manufacturers  employed  upon  them,  there  had  been  a  known 
usage  in  this  trade  for  distillers  to  rent  or  hire  the  vats  and  other  articles 
used  by  them  for  the  purpose  of  distilling,  the  possession  and  use  of  such 
articles  would  not  in  such  case  have  carried  the  reputed  ownership.  But 
in  the  absence  of  such  usage,  there  is  nothing  stated  in  the  case  which 
qualifies  the  reputed  ownership  arising  out  of  the  possession  and  use  of 
the  things  in  their  trade.  The  world  would  naturally  give  credit  to  the 
traders  on  their  reputed  property,  and  the  person  who  permitted  them  to 
hold  out  to  the  world  the  appearance  of  their  being  the  real  owners,  ought 
to  be  an.swerable  for  the  consequences,  and  was  so  intended  to  be  by  the 
Statute."  See,  also,  Eufford  v.  Bishop,  5  Euss.,  346,  359  (1829);  s.  C, 
7  L.  J.,  Ch.,  108,  114;  Storer  v.  Hunter,  3  B.  &  C,  368  (1824),  explained  by 
Parke,  J.,  in  Coombs  v,  Beaumont,  5  B.  &  Ad.,  72,  76   (1833). 

In  some  of  the  cases  last  above  cited,  the  existence  of  a  custom  as  to  de- 
mising fixtures  together  with  the  premises,  is  referred  to  by  the  judges  in 
terms  indicating  tliat  some  reliance  was  placed  thereon  in  forming  their 
judgments.  Independently,  however,  of  that  question,  the  rule  in  the 
absence  of  legislation  specially  affecting  the  question,  seems  to  be  well 
founded  upon  the  nature  of  the  things  themselves  during  their  annexa- 
tion as  being  parcel,  or  in  the  nature  of,  the  realty,  and  hence  not  goods 
and  chattels  within  the  meaning  of  the  statute. 

1*  See,  generally,  the  cases  cited  in  this  section. 

i.'-Be  Head,  12  W.  R.,  215  (1864)  ;  s.  c,  9  L.  T.  (N.  S.),  613;  Ex  parte 
Newbery,  10  L   T.  (N.  S.),  661  (1864)  ;  Coombs  v.  Beaumont,  5  B.  &  Ad., 

509 


•340  THE  LAW  OF  FIXTUUES.  [CIIAP,   IX. 

a  stipulation  fiiviug  the  tenant  the  right  to  remove  trade  fixtures 
at  the  end  of  the  term,  provided  the  lessee  should  have  kept 
all  his  covenants,  but  otherwise  not,  and  that  none  of  them 
should  be  removed  during  the  term  without  the  consent  of  the 
lessor,  such  trade  fixtures  can  be  removed  by  the  assignee  in 
bankruptcy  of  the  tenant  only  upon  payment  of  arrears  of 
rent.  Such  a  lien  is  valid,  the  act  of  affixing  the  articles  in  ques- 
[*340]  tion  to  the  freehold  taking  them  out  of  the  *category 
of  chattels  and  being  notice  to  creditors  and  to  all  the  world 
that  the  right  of  removal  will  depend  on  the  contract  between 
landlord  and  tenant.^'' 

Between  the  vendor  of  land  by  executory  contract  and  the 
assignee  in  bankruptcy  of  the  vendee,  few  cases  seem  to  have 
arisen.  No  reason  is  perceived,  however,  why  the  rule  as  applied 
between  the  mortgagee  and  the  assignee,  is  not  equally  applicable 
to  this  relation.  In  the  case  of  Parsons  v.  Hind,i^  the  plaintiff, 
who  was  the  owner  of  a  factory,  contracted  to  sell  it  to  K., 
who  entered  into  possession  of  the  premises.  There  was,  how- 
ever, no  conveyance  made,  nor  payment  of  the  purchase  money ; 
and  K.  afterwards  becoming  bankrupt,  his  assignee  elected  not 
to  adopt  the  contract  to  purchase  the  factory.  The  assignee, 
however,  sold  the  hydraulic  press  in  question  to  defendants, 
who  upon  the  plaintiff's  refusing  to  allow  its  removal,  broke 
into  the  factory  and  removed  it.     The  press  was  mortared  to 

n  (1833);  S.  C,  2  Nev.  &  Man.,  235;  2  L.  J.  (N.  S.),  K.  B.,  190,  where 
a  steam  engine  erected  for  the  purpose  of  working  a  colliery,  to  be  used 
by  the  lessee  of  the  colliery  during  his  term,  but  to  be  held  as  the  prop- 
erty of  the  landlord  subject  to  such  use,  was  held  not  to  pass  to  the  as- 
signee of  the  tenant  upon  his  bankruptcy.  {Ex  parte  D 'Eresby  (1881), 
44  L.  T.  K.,  781,  reversing  Ex  parte  Sheen  (1881),  43  L.  T.  R.,  638,  and 
affirming  Ex  parte  D 'Eresby  (1880),  22  Alb.  Law  J.,  382.] 

16 Ex  parte  Morrow,  1  Lowell's  Dec,  386  (1869);  s.  c,  2  N.  B.  R.  (2d 

ed.),    665. 

See,  also,  Storer  v.  Hunter,  3  B.  &  C,  368  (1824),  where  the  tenant  had 
only  a  qualified  right  of  user  during  the  term,  the  lease  containing  a  cove- 
nant to  deliver  up  the  machinery,  etc.,  used  with  the  colliery,  and  a  pro- 
vision for  a  valuation  before  the  determination  of  the  term,  and  that  the 
difference  between  such  valuation  and  the  inventory  and  valuation  at  the 
commencement  of  the  term,  should  be  paid  by  the  landlord  or  tenant  to  the 
other  according  as  it  was  greater  or  less  than  the  value  at  the  time  of  the 
letting. 

17  14  W.  R.,  860  (1866). 

510 


CHAP.    IX.]  BANKRUPTCY,    ETC.  *341 

the  floor  of  the  factory,  but  was  not  essential  to  the  carrying  on 
of  the  factory,  nor  annexed  to  improve  the  premises,  but  was 
merely  an  additional  convenience  brought  into  the  factory  for 
temporary  uses  and  was  so  fixed  in  order  to  render  it  steady  and 
for  its  more  convenient  use.  Upon  an  action  brought  against 
the  defendants  to  recover  damages  for  the  conversion  of  said 
press,  it  was  held  by  the  Court  of  Queen 's  Bench  that  said  press 
never  was  a  part  of  the  freehold,  but  was  always  a  mere  chattel, 
and  therefore  belonged  to  the  assignee.  Had  the  annexation 
been  made  perpetui  ^isiis  causa,  and  not  for  a  mere  temporary 
purpose,  the  decision  must  evidently  have  been  otherwise.^  ^ 

*The  rule  applies  also  to  fixtures  not  actually,  but  on]y  [*341] 
constructively  annexed  to  the  realty.  Thus,  it  is  held  that  an 
upper  mill-stone  affixed  in  the  usual  way  by  the  owner  of  the 
inheritance  after  the  execution  of  a  mortgage,  though  not  actu- 
ally annexed  to  the  freehold,  is  yet  essentially  parcel  of  the  mill 
and  passes  to  the  mortgagee  as  against  the  assignee  in  bank- 
ruptcy of  the  mortgagor.^  ^  The  same  rule  is  applicable  to  the 
case  of  keys,  doors,  and  other  recognized  instances  of  construct- 
ive annexation. 

So,  articles  which,  though  loose,  have  been  disconnected  with- 
out leave  or  the  knowledge  of  the  mortgagee,  follow,  as  it  seems, 
the  rule  applicable  to  fixtures  in  a  state  of  annexation;  for  they 
cannot  be  considered  in  the  order  and  disposition  of  the  bank- 
ruj)ts  with  the  consent  of  the  true  owner .2*^ 

Independently  of  the  construction  put  upon  the  words  "goods 

18  See,  also,  Ex  parte  Watkins,  1  Dcac,  296  (1835),  a  case  between  ven- 
dor and  the  assignee  of  the  vendee,  whicli,  however,  was  decided  without 
reference  to  the  question  whether  the  fixtures  were  or  were  not  goods  and 
chattels,  the  bankrupt  not  being  in  possession  thereof  at  the  time  of  his 
committing  tlie  act  of  bankruptcy;  Ex  parte  King,  1  Mont,  Dea.  &  DcG., 
119   (1840)  ;  s.  C,  4  Jur.,  510. 

loWalmsley  v.  Milne,  7  C.  B.  (N.  S.),  115  (1859);  S.  C,  6  Jur.  (N.  S.), 
125;  29  L.  J.,  C.  P.,  97;  1  L.  T.  (N.  S.),  62;  8  Am.  Law  Keg.,  373.  [See, 
ante,  p.  "SOL] 

See,  also,  Ex  parte  Astbury,  L.  R.,  4  Ch.  App.,  630  (1869) ;  s.  c,  38  L. 
J.,  Bank.,  9;  20  L.  T.  (N.  S.),  997;  17  W.  R.  997,  where  the  same  rule 
was  applied  as  to  the  irnn  rolls  (including  duplicatos)  of  a  rolling  mill; 
also  as  to  straightening  plates  laid  on  brickwork  and  liedded  in  earth. 

20  Per  TTolroyd,  Com  'r  in  Ex  parte  Reynal,  2  Mont.  Dea.  &  DeG.,  443, 
448   (1841). 

511 


*342  THE  LAW  OF  FIXTURES.  [  CHAP,  IX. 

and  chattels"  in  the  statutes  rehiting  to  bankruptcy,  property 
affixed  to  the  freehold  is  said  not  to  be  within  the  intent  of  the 
acts;  because  the  possession  of  such  property  does  not  create 
a  visible  ownership  in  the  bankrupt,  so  as  to  procure  him  un- 
merited credit.  For  creditors  are  not  deceived  by  the  possession 
of  property  of  this  description ;  and  it  differs  from  the  case  of 
personal  goods,  where  the  possession  and  power  of  disposal  are 
the  only  evidence  of  ownership  to  which  a  creditor  can  look.21 
[*342]  *Questions  have  also  been  raised  respecting  the  legality 
of  the  mortgagor's  retaining  possession  of  the  fixtures  after  the 
execution  of  a  mortgage  upon  the  land  to  which  they  are  an- 
nexed, on  the  ground  that  the  fixtures  are  to  be  regarded  as 
in  the  nature  of  personal  chattels,  and  hence  keeping  posses- 
sion of  them  after  a  conveyance,  is  to  be  deemed  inconsistent 
with  the  deed,  and  evidence  of  fraud.22  It  seems,  however, 
to  be  settled,  that  fixtures  so  far  partake  of  the  nature  of  realty, 
that  the  keeping  possession  of  them  with  the  land  after  an  as- 
signment will  not  avoid  the  conveyance  on  the  ground  of  fraud ; 
and  that  in  this  respect  a  mortgage  or  sale  of  property  annexed 
to  the  realty,  is  to  be  distinguished  from  one  of  mere  chattels 
in  a  state  of  severance  therefrom.^s 

«i  Ferard  on  Fixt.,  239,  et  seq.,  citing  Steward  v.  Lombe,  1  Brod.  &  B., 
511  (1820),  per  Dallas,  C.  J.;  Eufford  v.  Bishop,  5  Euss.,  346  (1829)  ;  Hub- 
bard V.  Bagshaw,  4  Sim.,  326  (1831).  See,  also,  Boydell  v.  McMichael,  1 
Cr.  M.  &  E.,  179  (1834),  per  Parke,  B.;  Eyall  v.  Eolle,  1  Atk.,  165,  168 
(1749). 

22  See,  generally.  Statute  13  Eliz.,  ch.  5  (anno,  1570);  Twyne's  Case.,  3 
Co.,  80  (1602)  ;  Edwards  v.  Harben,  2  Term,  587  (1788) ;  Eeid  v.  Blades, 
5  Taunt.,  212  (1813)  ;  Bryson  v.  Wylie,  1  B.  &  P.,  83,  note  (1784)  ;  Eaat- 
wood  V.  Brown,  1  Ey.  &  M.,  312  (1825);  1  Smith's  Lead.  Cas.,  33,  39, 
et  seq.,  where  the  eases  are  fully  collected;  also.  Ex  parte  Quincy,  1  Atk., 
477  (1750),  where  Lord  Hardwieke  stated  that  there  would  have  been  a 
difficulty  in  the  possession  of  the  mortgagor,  had  it  not  otherwise  have 
been  cleared  up  by  an  express  agreement  between  the  parties  that  the 
mortgagor  should  not  be  prevented  from  coming  in  the  brew-house. 

23  See  Eyall  v.  Eolle,  1  Atk.,  165  (1749)  ;  s.  c,  1  Ves.,  348,  375;  Steward 
V.  Lombe,  1  Brod.  &  B.,  506  (1820)  ;  s.  c,  4  Moore,  281;  Ferard  on  Fixt., 
230;  Strauss  v.  Davy,  15  Leg.  Int.,  139  (1858);  s.  C,  3  Phila.  Eep.,  137; 
Knight  V.  The  Bank,  15  Leg.  Int.,  139  (1858) ;  s,  C,  3  Phila.  Eep.,  138. 


512 


CHAP.   IX.]  STATUTE   OF   FRAUDS.  *343 

VI.     Of  the  Sale  of  Fixtures  as  Affected  by  the  Statute 

OF  Frauds.24 

It  has  already  been  seen  from  the  various  cases  already  cited, 
that  fixtures,  whether  erected  by  the  owner  of  the  fee  or  by 
the  owner  of  a  less  interest  in  the  land,  may  be  sold  or  mortgaged 
either  in  connection  with  or  separately  from  the  land. 

It  remains  to  be  considered  whether  contracts  relating  to 
*the  sale  of  fixtures  are  embraced  within  the  provisions  [*343] 
of  the  Statute  of  Frauds. 

"Where  the  contract  relates  to  the  transfer  of  fixtures  together 
with  the  land,  the  contract  being  an  entire  one,  it  clearly  comes 
within  the  4th  section  of  the  Statute;  and  in  such  a  case  any 
agreement  for  the  sale,  valuation,  etc.,  of  the  fixtures,  though  it 
may  be  of  a  chattel  interest  only,  must  be  in  writing  and  executed 
according  to  the  formalities  required  by  the  Statute.^^ 

It  appears,  however,  to  be  settled,  that  a  sale  of  removable 
trade  or  other  tenant's  fixtures,  separately  from  the  land,  does 
not  come  within  the  4th  section  of  the  Statute  as  being  a  sale 
of  an  interest  in  land.-^     And  some  cases  even  go  so  far  as  to 

2*  The  Statute  of  Frauds  will  also  be  found  further  considered  in  the 
chapter  upon  Emblements   (chap.  8). 

25Ferard  Fixt.,  253;  Vaughn  v.  Hancock,  3  C.  B.,  766  (1846);  s.  C,  10 
Jur,,  926;  16  L.  J.,  C.  P.,  1.  [See  Stone  v.  Thaden,  10  N.  Y.  Supp.,  236, 
237   (1890);  Jarvis  v.  Jarvis   (1893),  1  Manson's  Bankr.  Cas.,  199,  201.] 

See,  also,  Mechelon  v.  Wallace,  7  Ad.  &  E.,  49  (1837),  holding  an  agree- 
ment for  a  house  and  furniture,  the  breach  being  assigned  as  to  the  furni- 
ture, to  be  an  entire  and  inseparable  contract  and  within  the  Statute  of 
Frauds;  Kelly  v.  Webster,  post  in  this  section. 

2«nallen  v.  Runder,  3  Tyrwh.,  959  (1834);  s.  C,  1  Cr.  M.  &  R.,  266;  3 
L.  J.  (N.  S.),  Exch.,  260;  Petrie  v.  Dawson,  2  C.  &  K.,  138  (1845)  ;  Lee  v. 
Gaskell,  45  L.  J.,  Q.  B.  D.,  540  (1876).  See,  also,  Ross's  Appeal,  9  Penn. 
St.,  491  (1848).  [Webster  v.  Nichols,  104  111.,  160,  174  (1882);  Oswald 
V.  Whitman,  22  Nova  S.,  13,  16  (1889);  Malmsbury  Min.  Co.  v.  Tucker, 
3  Vict.  L.  R.  (Law),  21.3,  221  (1877);  see,  also,  Apolo  v.  Kauo,  7  Hawaii, 
755,  756  (1889);  Kehlor  v.  Wilton,  99  111.  App.,  228,  230  (1901).] 

[The  rule  is  the  same  as  to  buildings  owned  by  licensees  upon  the  land 
of  others,  r'ommonwealth  v.  Wesley,  166  i^Tass.,  248,  252  (1896);  Ford 
V.  Burleigh,  62  N.  11.,  388,  392  (1882);  School  District  v.  Milligan,  88 
Pa.  St.,  96  (1878)  ;  although  in  McKenzio  v.  McDonald,  2  Nova  S.,  Dec,  11, 
12  (1869),  it  is  said  that  a  building  is  prima  facie  a  part  of  the  realty 
33  513 


*344  THE  LAW  OF  FIXTURES.  [CIIAP.   IX. 

hold  that  a  sale  of  fixtures  by  the  owium-  of  the  freehold,  with  a 
view  to  their  severance  from  the  soil,  may  be  made  by  parol. 2'' 
It  is  well  settled  that  a  parol  promise  to  pay  for  the  improve- 
ments made  upon  land  in  the  possession  of  another,  the  agree- 
f*344J  *ment  being  substantially  to  pay  for  labor  bestowed 
upon  land  under  the  denomination  of  improvements,  if  founded 
upon  a  sufficient  consideration,  is  valid ;  and  is  not  within  the 

and  within  the  Statute  of  Frauds,  although  neither  the  vendor  nor  the 
vendee  claim  title  to  the  land.] 

[In  Wasbband  v.  Washband,  24  Conn.,  500  (1856),  a  son  built  a  plaster 
mill  upon  his  father 's  land  at  his  own  expense  under  a  verbal  agreement 
that  he  might  own  and  use  it.  The  father,  upon  a  division  of  his  estate 
among  his  children,  deeded  the  land,  upon  which  the  mill  stood,  to  another 
son,  at  which  time  the  latter  bought  the  mill  from  the  builder,  giving  his 
promissory  note  therefor.  When  sued  upon  the  note,  the  maker  claimed 
■want  of  consideration,  insisting  that  the  mill  was  a  part  of  the  freehold, 
and  the  sale  was  not  in  writing.  Held,  that  the  mill  belonged  to  the 
builder,  and  his  sale  to  his  brother  was  valid.] 

27Bostwick  v.  Leach,  3  Day,  476  (1809);  Poster  v.  Mabe,  4  Ala.,  402 
(1842);  Strong  v.  Doyle,  110  Mass.,  92  (1872),  per  Colt,  J.  See  also 
Scoggin  V.  Slater,  22  Ala.,  687  (1853);  Marshall  v.  Green  and  other  cases 
cited  ante,  chap.  8,  p.  *268.  [Rogers  v.  Cox,  96  Ind.,  157,  159  (1884)  ; 
Tyson  v.  Post,  108  N.  Y.,  217,  221  (1888),  affirming  22  N.  Y.  Wkly.  Dig., 
492   (Supr.  Ct.,  1885);  Moody  v.  Aiken,  50  Tex.,  65   (1878).] 

[Where  a  frame  building  is  sold  by  the  owner  of  the  land  upon  which 
it  is  situated,  and  the  manner  of  annexation  is  not  shown,  the  fair  infer- 
ence is  that  it  is  not  permanently  annexed.  Eogers  v.  Cox,  96  Ind.,  157, 
160  (1884).  And  in  Long  v.  White,  42  Ohio  St.,  59,  61  (1884),  it  is  said: 
' '  In  applying  the  statute  of  frauds,  buildings  are  not  classed  with  forest 
trees,  but  with  growing  crops,  nursery  trees,  and  fixtures  attached  to  the 
realty."] 

[An  unwritten  partition  of  a  line  fence  by  the  owners  of  the  contiguous 
lands,  is  valid.     Ivins  v.  Ackerson,  38  N.  J.  Law,  220,  222  (1876).] 

[A  sale  of  ice  is  not  realty  within  the  Statute  of  Frauds.  It  gains  no 
nourishment  nor  support  from  the  soil.  It  has  no  value  except  as  taken 
away  and  kept  in  a  solid  state.  Higgius  v,  Kusterer,  41  Mich.,  318 
(1879).] 

If  fixtures  annexed  by  the  owner  of  the  freehold,  during  annexation  par- 
take of  the  nature  of  realty  and  pass  with  the  land  to  the  heir  or  to  the 
vendee  of  the  land,  as  it  is  well  settled  they  do,  a  sale  of  them  by  parol 
•whether  with  a  view  of  immediate  severance  or  not,  seems  the  sale  of  an 
interest  in  or  concerning  land  within  the  Statute.  See  the  subject  con- 
sidered with  reference  to  growing  trees,  etc.,  in  chap.  8,  p.  *268.  See  also 
Landon  v.  Piatt,  34  Conn.,  517,  523  (1868).  In  Meyers  v.  Schemp,  67  111., 
469  (1873),  where  the  owner  of  a  brir-k  building  which  had  been  destroyed 

514 


CHAP.   IX.]  STATUTE   OF   FRAUDS.  *344 

Statute  of  Frauds.-^  But  a  contract  for  the  sale  and  delivery 
of  the  possession  of  land,  as  well  as  the  improvements  thereon, 
is  within  the  Statute,  possession  being  prima  facie  evidence  of 
title  and  an  interest  in  land  within  the  Statute.^^ 

As  to  whether  fixtures,  while  annexed  to  the  land,  may  be  by 
parol  excepted  from  the  operation  of  a  deed  conveying  the  land 
upon  which  they  are  situated,  there  is  a  conflict  of  authority. 
If  fixtures,  while  annexed,  are  to  be  considered  as  partaking  of 
the  nature  of  the  realty,  which  clearly  is  the  case  where  an- 
nexed by  the  OAMier  of  the  freehold,  the  better  opinion  seems 

by  fire  verbally  sold  the  brick,  some  of  whicli  had  been  severed  by  the  fire, 
but  the  main  portion  of  which  remained  in  the  walls  as  it  was  before  the 
fire,  it  was  held,  that  the  brick  in  the  walls  being  realty  and  the  sale  being 
an  entirety,  it  was  within  the  Statute  of  Frauds. 

[A  contract  of  sale  of  shelving  and  drawers  in  a  store  by  the  owner  of 
the  realty,  must  be  in  writing  and  executed  with  the  same  formality  as 
the  conveyance  of  any  other  realty.  Johnston  v.  Phila.  Mort.  Co.,  129 
Ala.,  515,  521  (1900).  A  sale  of  permanent  fixtures  by  the  owner  of  the 
land  to  which  they  are  annexed,  can  not  be  made  by  parol.  Brown  v. 
Roland,  92  Tex.,  54,  57  (1898),  overruling  11  Tex.  Civ.  App.,  648,  650 
(1895).  A  parol  sale  of  a  sugar  mill  by  the  owner  is  void.  Hutchins  v. 
Masterson,  46  Tex.,  551,  555   (1877).] 

28Frear  v.  Hardenbergh,  5  John.,  272  (1810);  Benedict  v.  Beebee,  11 
John.,  145  (1814);  Lower  v.  Winters,  7  Cow.,  263  (1827);  Scoggin  v. 
Slater,  22  Ala.,  687    (1853);   Cassell  v.  Collins,  23  Ala.,  676    (1853). 

[A  contract  by  which  the  owner  of  land,  upon  which  stood  a  barn,  was 
to  take  down  the  barn,  and  another  party  was  to  draw  the  timber  to  his 
land  where  the  barn  was  to  be  erected,  is  not  within  the  Statute  of  Frauds, 
although  the  barn  as  it  stood  was  a  part  of  the  realty,  as  it  was  to  be 
changed  to  personalty  before  anything  was  to  be  done  by  the  other  party. 
Scales  v.  Wiley,  68  Vt.,  39,  41    (1895).] 

[An  oral  partition  of  a  line  fence,  in  order  to  assign  to  each  landowner 
his  share  thereof  for  the  purpose  of  maintainance,  is  not  Avithiu  the 
Statute.     Ivins  v.  Ackerson,  38  N.  J.  Law,  220,  222  (1876).] 

20  Howard  v.  Easton,  7  John.,  205  (1810);  Kelly  v.  Webster,  12  C.  B 
283  (1852)  ;  s.  c,  16  Jur.,  838;  21  L.  J.,  C.  P.,  163;  10  Eng.  L.  &  Eq..  517 
which  was  a  contract  by  a  tenant  to  give  immediate  possession  to  a  third 
party  who  was  to  pay  him  a  certain  sum  for  such  possession  and  as  com 
pensation  for  improvements,  fixtures,  etc.  See,  also,  Cocking  v.  Ward 
1  C.  B.,  858   (1845). 

[A  contract  of  sale  of  the  "building  materials"  of  a  standing  iiouse, 
under  a  condition  that  the  purchaser  is  to  take  possession  of  the  premises 
for  the  purpose  of  removing  such  materials,  is  within  the  fourth  section  of 
the  Statute  of  Frauds.     Lavcry  v.  Purcell   (1888),  39  Ch.  D.,  508,  517.] 

515 


•345  THE  LAW  OF  FIXTURES.  [CHAP.  IX. 

clearly  to  be,  that  a  sale  and  conveyance  of  the  real  estate  will 
(there  being  no  exception  in  the  deed  of  conveyance)  pass  the 
fixtures  thereto  annexed,  notwithstanding  a  parol  exception 
thereof  at  the  time  of  such  sale,  not  only  because  such  parol 
exception  is  within  the  Statute  of  Frauds,  but  also  because  to 
admit  parol  evidence  thereof,  would  contravene  the  rule  that 
parol  contemporaneous  evidence  is  inadmissible  to  contradict 
or  vary  the  terms  of  a  valid  written  instrument-^*^  For  the  same 
[*345J  reason  parol  testimony  is  inadmis*sible  to  annex  to,  and 
include  in,  a  sale  of  land  any  subject-matter  not  legally  apper- 
taining thereto  or  a  parcel  thereof.^^ 

A  sale  of  a  tenant's  fixtures  while  annexed,  is  considered  not 

30 Bond  V.  Coke,  71  N.  C,  97  (1874),  a  cotton-gin  and  press-fixtures; 
Noble  V.  Bosworth,  19  Pick.,  314  (1837)  ;  Detroit,  etc.,  R.  R.  Co.  v.  Forbes,, 
30  Mich.,  166  (1874);  Conner  v.  Coffin,  22  N.  H.,  538  (1851),  parol  reser- 
vation of  manure  on  a  farm,  void.  See,  also,  Latham  v.  Blakely,  70  N.  C, 
368   (1874). 

Contra,  Pea  v.  Pea,  35  Ind.,  387  (1871);  Frederick  v.  Devol,  15  Ind., 
357  (1860) ;  Strong  v.  Doyle,  110  Mass.,  92  (1872),  where  the  separate 
agreement  related  to  manure  on  the  farm  sold. 

See  the  subject  considered  with  reference  to  growing  crops,  etc.,  ante, 
chap.  8,  p.  *252. 

[The  following  cases  sustain  tlie  text:  Towson  v.  Smith,  13  App.,  D.  C, 
48,  58  (1898);  VanHusen  v.  Omaha  B.  &  T.  R'y  Co.,  118  Iowa,  366,  379 
(1902);  Leonard  v.  Clough.  133  N.  Y.,  292,  296  (1892);  Brown  v.  Roland, 
92  Tex.,  54,  57  (1898);  lie  Perkins'  Est.,  26  Atl.,  637   (Vt.,  1893).] 

[Where  there  is  a  conveyance  of  land  by  deed,  containing  no  reserva- 
tions' as  to  the  buildings,  an  understanding  that  the  vendor  retains  the 
ownership  of  the  houses  thereon,  with  the  right  to  remove  them,  can  not 
be  shown  by  parol;  but  a  parol  agreement  as  to  a  gin  may  be  shown. 
Smith  V.  Odom,  63  Ga.,  499,  502   (1879).] 

[Where,  at  the  time  of  the  execution  of  a  mortgage  upon  land,  both 
parties  agreed  that  a  third  person,  advancing  money  for  part  payment, 
should  have  a  marine  railway  thereon,  this  agreement,  although  oral,  can 
be  shown  by  such  third  person,  even  though  it  contradicts  the  mortgage, 
as  the  third  person  is  not  a  party  to  the  written  instrument.  Tyson  v. 
Post,  108  N.  Y.,  217,  221  (1888),  affirming  22  N.  Y.  Wkly.  Dig.,  492 
(Supr.  Ct.,  1885).] 

31  McLaughlin  v.  Johnson,  46  111.,  163  (1867);  Ripley  v.  Page,  12  Vt., 
353  (1839),  both  of  which  cases  related  to  rails  lying  on  the  ground. 
[Seedhouse  v.  Broward,  34  Fla.,  509,  524  (1894);  see,  also,  Nesmith  v. 
Martin,  75  Pac,  590,  592  (Colo.,  1904).  But  parol  evidence  is  proper 
to  show  what  articles  are  covered  by  an  expression  used  in  a  deed.  Bagley 
V.  Rose  Hill  Sugar  Co.,  Ill  La.,  249  (1903).] 

516 


CHAP.   IX.]  STAMP   ACTS. 


^346 


to  be  a  sale  of  goods,  wares,  and  merchandise  within  the  17th 
section  of  the  Statute  of  Frauds,  though  the  point  does  not 
seem  to  have  been  very  extensively  discussed.32 

YII.    Stamp  Acts  as  Relating  to  Fixtures. 

No  decisions  upon  this  particular  subject  appear  ever  to  have 
been  made  in  this  country;  but  the  subject  has  been  considered 
by  the  English  courts  in  a  number  of  instances.  Thus  it  has 
been  held  in  an  action  on  an  agreement  for  the  sale  of  fixtures 
by  an  outgoing  to  an  incoming  tenant,  that  fixtures  are  not 
"goods,  wares,  or  merchandise,"  within  the  exception  of  the 
Stamp  Act,  55  Geo.  III.,  c.  184.33  Where  an  instrument  con- 
taining a  present  demise  of  a  house,  contains  also  a  contract  for 
the  purchase  of  fixtures,  it  cannot  be  given  in  evidence  to  prove 
the  sale  of  the  fixtures  unless  it  has  a  lease  stamp,  notwithstand- 
ing it  is  stamped  as  an  agreement,  the  one  contract  being  auxil- 
iary to  the  other.34  Any  further  consideration  of  the  subject 
of  Stamp  Acts  would  be  foreign  to  the  purpose  of  this  treatise, 
and,  for  further  information  on  the  subject,  the  reader  is  re- 
ferred to  the  authorities  cited  in  the  notes.^^ 

♦VIII.     Estoppel.  [*346] 

The  doctrine  of  estoppel  applies  to  sales  of  fixtures.  Thus, 
a  landlord  who  stands  by  and  sees  a  former  tenant  sell  as  his 
own  to  an  incoming  tenant,  articles  which  are  fixtures,  without 

82  See,  Hallen  v.  Kunder,  3  Tyrwh.,  959  (1834);  s.  c,  1  Cr.  M.  &  E., 
266;  Lee  v.  Gaskell,  45  L.  J.  (Q.  B.  D.),  540  (1876);  Ferard  Fixt.,  255. 
See,  also,  the  cases  cited  in  next  section.  [But  see  McKenzie  v.  McDonald, 
2  Nova  S.,  Dec,  11,  12   (1869).] 

33  See,  generally,  Wick  v.  Hodgson,  12  Moore,  213  (1827);  Marson  v. 
Short,  2  Scott,  243  (1835);  s.  C,  2  Bing.,  N.  C,  118,  per  Park,  J.;  Chan- 
ter V.  Dickenson,  5  M.  &  G.,  253  (1843);  S.  C,  6  Scott,  N.  K.,  182;  Hors- 
fall  V.  Key  (or  Hey),  2  Exch.,  778  (1848);  s.  c,  17  L.  J.,  Exch.,  266. 
See,  also,  Pinner  v.  Arnold,  2  Cr.  M.  &  R.,  613  (1835);  s.  c,  Tyrwh.  & 
Or.,  1. 

84Corder  v.  Drakeford,  3  Taunt.,  382  (1811).  See,  also,  Clayton  v. 
Burtenshaw,  5  B.  &  ('.,  41   (1826)  ;  1  Camp.  N.  P.,  387;  3  Stark.,  128. 

35  Duck  V.  Brafl.lyl,  1  M 'Clol.,  217  (1824);  s.  C,  13  Price,  455;  Coster  v. 
Cowling,  7  Bing.,  456  (1831);  Wilks  v.  Atkinson,  6  Taunt.,  11  (1815); 
Hughes  V.  Breeds,  2  C.  &  P.,  159  (1825) ;  Garbutt  v.  Watson,  5  B.  &  Aid., 
613  (1822);  Buxton  v.  Bedell,  3  East.  303  (1803);  Ferard  Fixt.,  255,  357. 

517 


*346  TnE  LAW  OF  FIXTURES.  [CHAP.  IX. 

assertiiiir  his  own  title  or  giving  such  incoming  tenant  any 
notice  of  his  chiiin,  is  estopped  as  against  such  purchaser  from 
asserting  it  aftei*wards;  3t>  and  the  converse  is  equally  true.  But 
declarations  or  admissions  of  want  of  title  to  fixtures  made  by 

30 Villas  V.  Mason,  25  Wis.,  310  (1870).  See,  also,  Gregg  v.  Wells,  2 
Per.  &  D.,  296  (1839)  ;  s.  c,  10  Ad.  &  E.,  90;  Ex  parte  Ames,  1  Lowell's 
Dec.,  567  (1871);  Pecoul  v.  Auge.  18  La.  Ann.,  615  (1866).  [Exchange 
Bldg.  Co.  V.  Schuchman  Realty  Co.,  103  Mo.  App.,  24  (1903);  Whitney 
V.  Shippen,  89  Pa.  St.,  22,  26  (1879);  Gray  v.  McLennan,  3  Man.,  337, 
345  (1886);  see,  also,  Bramble  v.  Kingsbury,  39  Ark.,  131,  134  (1882); 
Hibernia  Nat.  Bank  v.  Sarah  Planting  Co.,  107  La.,  650,  656  (1902); 
Morrison  v.  Sohn,  90  Mo.  App.,  76,  81   (1901).] 

[Where  a  landlord  permits  a  chattel  mortgagee  to  remove  certain  fix- 
tures, and  buys  some  himself,  but  refuses  to  allow  the  removal  of  others 
on  the  ground  that  such  removal  would  injure  the  building,  he  can  not, 
after  the  mortgagee  has  brought  an  action  of  replevin  for  such  fixtures, 
claim  them  as  having  been  forfeited  by  the  tenant 's  having  taken  a  new 
lease  without  reserving  them.  Bernheimer  v.  Adams,  70  App.  Div.,  114, 
120   (1902),  affirmed  175  N.  Y.,  472  (1903).] 

[Where  a  landowner  leases,  from  a  former  lessee,  machinery  left  by  the 
latter  upon  the  premises,  and,  when  the  lease  expires,  requests  the  former 
lessee  not  to  remove  it,  he  is  estopped  from  saying  that  the  former  lessee 
did  not  own  it.    Carper  v.  Eisdon,  76  Pac,  744,  746  (Colo.  App.,  1904).] 

[Where  a  former  lessee  urges  another  to  talie  a  lease  of  the  premises 
which  contains  a  clause:  "Also  the  shaft  already  dug  upon  said  prem- 
ises with  the  coal  cars  and  everything  else  situated  upon  the  following 
described  premises,"  he  is  estopped  to  assert  a  claim  for  his  improve- 
ments against  the  incoming  lessee.  Stewart  v.  Munford,  91  111.,  58 
(1878).] 

[In  Friedlander  v.  Eyder,  30  Neb.,  783,  789  (1890),  in  which  it  was 
held  that  a  frame  addition  erected  by  a  tenant  was  not  removable,  the  court 
referred  to  the  fact  that  the  landlord  had  allowed  a  deduction  from  the 
rent  for  repairs  afterwards  made  upon  the  structure,  but  no  comment 
was  made  by  the  court  as  to  the  effect  of  such  action.] 

[Where  a  wife  claiming  a  house  standing  upon  the  land  of  another  as 
her  personal  property,  allows  her  husband  to  hold  himself  out  as  the  owner, 
and  the  land-owner,  in  ignorance  of  the  wife's  claim,  buys  from  the  hus- 
band, she  will  be  estopped  to  recover  the  value  of  the  house  from  the 
land-owner.     Griffon  v.  Eansdell,  71  Ind.,  440,  445   (1880).] 

[Where  a  partition  is  levied  upon  as  the  property  of  the  tenant,  the 
landlord  is  not  estopped  to  claim  it  either  because  he  bid  therefor  at  the 
execution-sale,  nor  because  of  his  failure  to  notify  the  sheriff  nor  the 
purchaser  that  it  was  not  removable.  The  character  of  the  property  was 
open  to  observation,  and  the  landlord  was  under  no  legal  duty  to  expound 
bis  opinion.     McAuliffe  v.  Mann,  37  Mich.,  539,  542  (1877).] 

518 


CHAP.  IX.]  ESTOPPEL.  *346 

[Where,  at  a  foreclosure  sale  of  a  house  and  lot,  no  announcement  was 
made  that  gas-fixtures  and  mirrors  were  to  be  included,  the  failure  of  the 
owner,  being  present,  to  give  any  notice  of  his  claim  to  the  chattels  does 
not  estop  him  from  asserting  title.  McKeage  v.  Hanover  Ins.  Co.,  81  N. 
Y.,  38,  43   (1880).] 

[Where  a  person  is  made  defendant  to  a  foreclosure  action  and  makes 
no  defense,  and  is  present  at  the  foreclosure  sale,  and  makes  no  claim  to 
the  property  sold  thereunder,  he  is  estopped  from  claiming  that  fixtures 
were  not  a  part  of  the  realty.  Trowbridge  v.  Hayes,  45  N.  Y.  Supp.,  635, 
637  (1896).] 

[Where  the  owner  of  land,  upon  which  there  is  a  steam-engine  and 
boiler,  sells  them,  in  fraud  of  creditors,  as  personal  property,  and,  after 
they  have  been  levied  upon  as  the  property  of  the  seller,  the  buyer  removes 
and  claims  them,  the  buyer  is  estopped  from  averring  that  they  were  a 
part  of  the  realty  at  the  time  the  levy  was  made.  Earley  v.  Withers,  1 
Pearson,  248,  250   (Pa.,  1864),] 

[Where,  after  a  sheriff  has  levied  upon  an  engine  and  boiler  annexed 
to  the  freehold,  the  landowner  sells  them  as  chattels,  the  buyer  who  re- 
moves them  is  disabled  from  contending  that  they  were  not  chattels  at 
the  time  of  the  levy.    Walton  v.  Jarvis,  14  Up.  Can.,  Q.  B.,  640.] 

[Where  machinery,  after  a  fire,  is  moved  to  another  place  without  objec- 
tion from  the  mortgagee  of  the  land  upon  which  it  stood,  and  is  mort- 
gaged as  personal  property,  the  mortgagee  of  the  land,  in  foreclosing  his 
mortgage  nearly  two  years  later,  can  not  follow  such  machinery  and  make 
it  liable  under  his  real  estate  mortgage.  Padgett  v.  Cleveland,  33  S.  C, 
339,  349  (1889).] 

[Where  a  tramroad  is  located  upon  more  than  one  tract  of  land,  one 
of  which  is  owned  in  common,  a  levy  upon  the  tramroad  by  one  tenant 
in  common  does  not  estop  him  from  claiming  that  the  tramroad  is  a  part 
of  the  realty,  when  there  is  nothing  to  show  that  such  levy  was  not  made 
upon  that  part  of  the  tramroad  located  upon  other  tracts,  and  notice  was 
given  by  some  of  the  co-tenants  at  the  sale  that  the  tramroad  upon  their 
land  was  realty.  tSilllman  v.  Whitmer,  11  Pa.  Super.,  243,  265  (1899), 
affirmed  196  Pa.  St.,  363,  365  (1900).] 

[A  mortgagee  knew  of  the  sale  of  a  barn  upon  the  mortgaged  premises 
by  the  mortgagor,  but  did  not  assent  thereto.  Then  the  mortgagor  con- 
veyed the  premises,  reserving  the  barn.  Later  the  mortgage  was  assigned 
to  the  grantee,  who  knew  of  the  sale  of  the  barn.  Held,  that  the  grantee 
was  not  estopped  from  asserting  title  to  tlic  b.iin  through  the  assignment 
of  the  mortgage,  as  the  mortgagee's  title  thereto  was  never  impaired,  and 
was  HUficrior  to  all  others.     Linscott  v.  Weeks,  72  Mo.,  506   (1881).] 

[Where,  at  a  meeting  of  the  creditors  of  an  insolvent  firm,  the  landlord 
of  the  partners  being  present,  the  landlord  is  given  security  for  his  claim, 
and  another  creditor  is  secured  by  a  chattel  mortgage  upon  an  engine, 
boiler  and  attachmonts,  the  landlord,  after  rocoiving  the  full  honofit  of  his 
security,  can  not  assert  that  the  engine,  boiler  and  attachments  are  a  part 

519 


*340  THE  LAW  OP  FIXTURES.  [CHAP.   IX. 

one  without  consideration,  in  ignorance  of  and  without  the 
intention  of  relincjuishing  his  rights,  work  no  estoppel.^"  A 
person   and  those  claiming  under  him  may  also  be  estopped 

of  the  realty.  Conde  v.  Lee,  55  App.  Div.,  401,  404  (1900),  affirmed  171 
N.  Y.,  662   (1902).] 

[Where  the  owner  of  machinery,  which  is  claimed  by  land-owners  as  a 
fixture,  agrees  to  return  the  property  after  using  it  elsewhere,  ho  is  not 
estopped  to  assert  title  to  it,  as  the  agreement  is  no  more  than  a  promise 
to  put  it  back,  and  he  does  not  thereby  recognize  the  title  of  the  land- 
owners.    Bewick  v.  Fletcher,  41  Mich.,  625,  626  (1879).] 

[That  a  mortgagee  of  the  laud  told  the  owner  that  foreclosure  would 
be  waived  upon  certain  conditions,  does  not  estop  him  from  claiming  the 
crops  of  a  tenant,  the  conditions  never  having  been  accepted  nor  performed. 
Eeed  v.  Swan,  133  Mo.,  100,  110   (1895).] 

[A  statement  by  the  plaintiff  to  the  defendant,  while  an  action  for 
ejectment  was  pending,  that  the  latter  could  "go  ahead  with  that  crop 
and  put  it  in  the  same  as  you  have  been  doing, ' '  does  not  estop  the  plain- 
tiff, upon  being  placed  in  possession  of  the  land,  from  claiming  a  crop 
growing  thereon.     Davis  v.  Callahan,  66  Mo.  App.,  168,  171   (1896).] 

[Where  a  barn  has  been  insured  by  one  who  represented  it  as  being  part 
of  his  freehold,  he  can  not,  after  failing  to  prove  title  to  the  land,  be 
heard  to  claim  that  he  insured  the  barn  as  a  chattel.  Sherboneau  v. 
Beaver  Ins.  Co.,  33  Up.  Can.,  Q.  B.,  1  (1872),  affirming  30  Up.  Can.,  Q. 
B.,  472    (1870).] 

37  Harlan  v.  Harlan,  15  Penn.  St.,  507  (1850)  ;  s.  C,  20  Id.,  303.  See 
further  on  the  subject  of  estoppel,  Meigs's  Appeal,  62  Penn.  St.,  28  (1869). 
[Long  v.  Anderson,  62  Ind.,  537  (1878);  Smith  v.  Sprague,  119  Mich.,  148, 
150  (1899)  ;  Kirchman  v.  Lapp,  19  N.  Y.  Supp.,  831,  832  (1892)  ;  Hamil- 
ton V.  Austin,  43  Supr.  Ct.  (36  Hun),  138,  144  (N.  Y.,  1885);  see,  also, 
Sun  Assurance  Co.  v.  Taylor,  9  Man.,  89,  100  (1893).] 

[Where  an  attorney  of  a  landowner  misstated  to  one  negotiating  for 
his  tenant's  interests,  that  the  landowner  had  no  claim  to  buildings  erected 
by  the  tenant,  but  corrected  the  statement  before  it  was  acted  upon,  no 
ground  for  estoppel  arises.  Sanitary  District  of  Chicago  v.  Cook,  169  111., 
184,  195  (1897).] 

[Failure  of  a  tenant  to  object  to  a  sale  of  fixtures  in  his  possession,  but 
belonging  to  his  landlord,  does  not  affect  the  landlord's  rights.  Grim- 
shawe  v.  Burnham,  25  Up.  Can.,  Q.  B.,  147  (1865).] 

[A  statement  by  a  tenant  that  he  owned  the  house,  and  that  the  land- 
lord knew  that  he  was  the  owner  and  acquiesced  in  his  statement,  does  not 
prevent  the  landlord  from  denying  that  he  was  such  owner.  Talbot  v, 
Cruger,  88  Supr.  Ct.  (81  Hun),  504  (1894),  affirmed  151  N.  Y.,  117,  121 
(1896).] 

[A  beneficiary  in  a  deed  of  trust  can  not  be  estopped  by  assurances 
made  by  the  trustee  that  the  beneficiary  would  make  no  claim  to  articles 

.520 


CHAP.  IX.]  ESTOPPEL.  *346 

from  denying  that  a  building  or  other  fixture  is  a  chattel  by 
describing  it  as  "goods  and  chattels"  in  a  chattel  mortgage 
given  by  him  thereon.^* 

as  fixtures;  and  especially  is  this  the  case  where  the  trustee  merely  offers 
this  as  his  opinion.  Fisk  v.  People's  Bank,  1-1  Colo.  App.,  21,  31  (1899).] 
[Where  a  conditional  seller  of  machinery  takes  a  second  mortgage  upon 
the  land  to  which  the  machinery  is  attached,  and  for  security  for  the  price 
thereof,  such  second  mortgage  reciting  that  such  macliinery  is  a  part  of 
the  freehold,  the  second  mortgagee  is  not  estopped  from  claiming  the 
machinery  as  chattels  when  the  recital  in  the  second  mortgage  was  in- 
serted by  mistake  resulting  from  an  unintentional  misrepresentation  of  the 
mortgagor.     Waterous  Engine  Co.  v.  Henry,  2  Man.,  169   (1884).] 

38Ballou  V.  Jones,  37  111.,  95  (1865).  [Gordon  v.  Miller,  28  Ind.  App., 
612,  619  (1901);  Corcoran  v.  Webster,  50  Wis.,  125,  130  (1880).  Or,  con- 
versely, by  taking  a  chattel  mortgage.  Lansing  Works  v.  Wilbur,  111 
Mich.,  413,  420  (1897);  Platto  v.  Gettleman,  85  Wis.,  105,  109  (1893); 
Smith  V.  Waggoner,  50  Wis.,  155,  161  (1880)  ;  see,  also,  Stevens  Mfg. 
Co.  V.  Barfoot,  9  Ont.,  692,  696  (1885).  But  see  Fifield  v.  Farmers  Nat. 
Bank,  148  111.,  163,  173  (1893);  Stevens  v.  Barfoot,  13  Up.  Can.  App., 
366  (1886);  Sun  Assurance  Co.  v.  Taylor,  9  Man.,  89,  98  (1893),  where 
a  mortgagee  of  the  realty  takes  a  chattel  mortgage  of  machinery  thereon 
as  a  precaution.] 

[In  order  that  a  mortgagor  may  be  estopped  by  his  chattel  mortgage  it 
must  appear  that  he  had  the  intention,  at  the  time  he  made  the  improve- 
ment, that  it  should  not  become  a  part  of  the  realty.  Where  a  lessee  of  a 
strip  of  land  erects  a  steam  elevator  thereon,  which  the  lease  does  not 
give  him  authority  to  remove,  and  which  is  actually  real  estate,  and  which 
can  not  be  removed  without  injury  to  itself  and  to  the  realty,  a  subse- 
quent mortgage  thereof  in  which  it  is  referred  to  as  "goods  and  chat- 
tels" will  not  estop  the  mortgagor  from  claiming  that  the  elevator  is 
realty  as  against  his  judgment  creditors,  who  also  claim  that  it  is  realty. 
Cross  V.  Wearc  Commission  Co.,  153  111.,  499,  512  (1894).] 

[A  person  is  not  estopped  to  deny  that  a  building  is  personalty  by  ac- 
cepting a  deed  describing  it  as  a  chattel,  and  having  it  acknowledged  and 
entered  as  a  chattel  mortgage,  where  the  party  claiming  an  estoppel  had 
the  Bame  means  of  knowledge  as  to  which  class  of  property  the  building 
belonged,  and  has  not  changed  his  conduct  in  consequence  of  the  acts  of 
the  other.     Knapp  v.  Jones,  143  111.,  375   (1892).] 

[The  parties  benefited  by  a  deed  of  trust  of  realty  which  designates  a 
Bteam-cngine  and  boilers  thereon  as  personalty,  are  not  estopped  from 
claiming  that  the  engine  and  boiler  are  realty,  as  no  one  can  be  nlisled. 
Jenney  v.  Jackson,  6  111.  App.,  32,  36   (1880).] 

I  The  fact  that  a  purchaser  at  an  execution  sale  of  land,  holds  a  second 
mortgngc  upon  mai-liinery  thereon  as  chattels,  docs  not  estop  him  from 
claiming  such  machinery  as  fixtures  as  against  the  party  holding  the  first 
chattel  mortgage  thereon.    Keve  v.  Paxton,  26  N.  J.  Eq.,  107,  109  (1875).] 


521 


*346  THE  LAW  OP  FIXTURES.  [  CHAP.   IX. 

[A  person,  by  takinji  :i  bill  of  salo  of  a  house,  is  estopped  from  asserting 
it  to  be  realty.    Apolo  v.  Kauo,  7  HaM-aii,  755,  757  (1889).] 

(Where  a  builder  of  a  house  upon  land  for  whicli  he  has  a  contract  of 
purchase,  rents  it,  ho  necessarily  rents  it  to  stand  where  it  is,  and  he  can 
not,  at  the  same  time,  treat  it  as  personalty.  Braceliu  v.  McLaren,  59 
Mich.,  327,  328   (1886).] 

[One  who  has  placed  mill-stones  in  a  mill  under  an  agreement  that  they 
are  to  remain  his  separate  property,  is  not  estopped  to  claim  them  by  the 
mere  fact  that  he  afterwards  leases  the  mill,  where  the  mill-stones  are 
not  mentioned  in  the  agreement.  Sullivan  v.  Jones,  14  S.  C,  362,  365 
(18S0).] 

[Where  a  tenant  took  the  acknowledgment  of  his  wife  to  a  mortgage  of 
the  land,  there  being  nothing  in  the  mortgage  to  indicate  that  it  covered 
a  portable  sawmill  thereon,  and  the  mortgagee  knowing  that  the  husband 
claimed  "it.  he  is  not  estopped  to  assert  his  title  to  the  mill  as  a  chattel. 
Bartlett  v.  Haviland,  92  Mich.,  552,  556  (1892).] 

[Where  a  subsequent  incumbrancer,  in  compelling  a  prior  mortgagee  to 
account,  treats  all  the  trade  fixtures  as  part  of  the  realty,  he  can  not 
afterwards  levy  upon  these  fixtures  as  chattels.  Carson  v.  Simpson,  25 
Ont.,  385    (1894).] 

[Where  the  owner  of  buildings,  who  has  no  interest  in  the  land  upon 
which  they  are  located,  sells  them,  and  afterwards  obtains  title  to  the  land 
before  the  buildings  are  removed,  the  rights  of  the  purchaser  of  the 
buildings  are  not  prejudiced;  for  if  the  former  landowner  had  no  legal 
interest  in  the  buildings,  the  conveyance  did  not  affect  them,  and  if  he  had 
an  interest  in  the  buildings,  the  conveyance  ought,  in  equity  and  good 
conscience  to  operate  in  effectuation  of  the  former  sale.  Myrick  v.  Bill,  3 
Dak.,  284,  290   (1883).] 

[Where  a  partition  suit  is  brought  by  the  purchaser  of  a  mill  under  a 
decree  adjudging  it  to  be  realty,  the  defendants  can  not  allege  it  to  be 
personal  property,  as  the  decree,  to  which  they  wore  parties,  is  conclu- 
sive until  reversed,  and  can  not  be  attacked  collaterally.  Marshall  v. 
Stewart,  80  Ind.,  189   (1881).] 

[Where  a  mortgagee,  in  foreclosing  his  mortgage,  calls  it  a  real-estate 
mortgage,  and  refers  in  his  bill  to  the  building  on  the  land  as  a  part 
thereof  and  as  being  covered  by  a  prior  real  estate  mortgage,  he  is  estopped, 
as  against  a  purchaser  at  the  sale,  from  asserting  the  building  to  be  per- 
sonal property.     Miles  v.  McNaughton,  111  Mich.,  350,  355   (1896).] 

[Where  in  ejectment  for  land,  the  defendant  claimed  no  exclusive  prop- 
erty in  a  house  thereon,  and  a  verdict  was  rendered  for  a  moiety  of  the 
land,  the  defendant  is  estopped,  in  a  subsequent  partition  suit,  from  claim- 
ing such  improvement  as  being  his  exclusively.  Booth  v.  Kapuakela,  10 
Hawaii,  414,  415   (1896).] 

[A  mortgagee  of  land  instituting  replevin  suit  for  an  engine  and  saw- 
mill, can  not  afterwards  claim  that  they  are  covered  'by  his  mortgage  as 
realty.  Long  v.  Cockern,  128  111.,  29,  36  (1889),  affirming  29  111.  App.,  304, 
312    (1888).     When  a  party  brings  an  action  of  replevin  for  rails  in  a 

522 


CHAP.  IX.]  VALUATION  OP  FIXTURES.  *347 

IX.     Agreements  as  to  Valuation  op  Fixtures  and  Improve- 
ments. 

Upon  the  demise  of  a  house  or  other  premises,  the  lease  is 
often  made  in  one  form  or  another  to  contain  a  covenant  on 
the  part  of  the  landlord  at  the  end  of  the  term  to  pay  for 
fixtures  or  improvements  put  upon  the  premises  by  the  tenant 
at  a  valuation,  or  to  grant  a  renewal  of  the  lease  or  allow  the 
tenant  to  remove  the  same;  and  especially  is  this  the  case  with 
reference  to  buildings  or  other  permanent  and  substantial  im- 
provements which  by  the  general  rules  of  law  would  not  be 
*allowed  to  be  removed  by  the  tenant  at  the  termination  [*347] 
of  his  term,  but  in  the  absence  of  a  contract  regulating  the 
rights  of  the  parties  would  go  to  the  landlord  as  a  part  of  the 
estate  without  his  making  any  compensation  therefor.^     But  in 

fence,  he  is  estopped,  when  sued  upon  the  replevin  bond,  from  insisting 
that  the  justice  had  no  Jurisdiction.  Fahnestock  v.  Gilham,  77  111.,  637, 
639   (1875).] 

[A  party,  who  proves  his  title  to  property  on  the  ground  that  it  was 
realty,  can  not  treat  it  as  personalty  for  the  purpose  of  entering  judgment 
upon  a  claim  bond.    Bull  v.  Jones,  9  Tex.  Civ.  App.,  346,  349  (1895).] 

[That  a  mortgagee  has  called  articles  personal  property  in  his  affidavit 
for  a  writ  of  replevin,  should  not  estop  him,  when  sued  on  his  bond,  from 
showing  that  they  are  fixtures.  Howell  v.  Barnard,  32  111.  App.,  120,  121 
(1889).] 

1  Kutter  V.  Smith,  2  Wall.,  491  (1864).  [See,  ante,  p.  *133.  Gocio  v. 
Day,  51  Ark.,  46,  48  (1888);  Chilvcrs  v.  Race,  196  111.,  71,  82  (1902); 
Doughiss  V.  Anderson,  28  Kan.,  262,  264  (1882)  ;  Guthrie  v.  Guthrie,  78  S. 
W.,  474  (Ky.,  1904)  ;  Gudgell  v.  Duvall,  27  Ky.,  229,  230  (1830)  ;  Sparks 
V.  Ball,  13  Ky.  Law  R.,  63  (1891);  Tyler  v.  Jacob,  4  Ky.  L.  R.,  717 
(1883) ;  Leslie  v.  Smith,  32  Mich.,  64,  68  (1875)  ;  Sims  v.  Kelsay,  75  Mo., 
68,  71  (1881);  McAllister  v.  Reel,  59  Mo.  App.,  70,  74  (1894);  Swift  v. 
Sheehy,  88  Fed.,  924,  927  (U.  S.  C.  C.,  Mo.,  1898) ;  Murphey  v.  Illinois 
Tr.  &  Sav.  Bank,  57  Neb.,  519,  522  (1899);  Hart  v.  Hart,  117  Wis.,  639, 
657  (1903).]  A  tenant  for  life  cannot  lay  out  moneys  in  improvements 
on  the  estate,  though  lasting  and  substantial,  and  charge  them  on  the  in- 
heritance. Caldeeott  v.  Brown,  2  Hare,  144  (1842)  ;  Nairn  v.  Majoribanks, 
3  Russ.,  582  (1827).  [Pickett  v.  Pnpc,  74  Ala.,  122,  132  (1883);  Austell 
v.  Swann,  74  Ga.,  278,  282  (1884);  Hagan  v.  Varney,  147  111.,  281,  292 
(1893);  Henry  v.  Brown,  99  Ky.,  13,  15  (1896);  Nineteenth  Pres.  Ch. 
V.  Fithian,  16  Ky,  L.  R.,  581,  582  (1895);  Sparks  v.  Ball,  91  Ky.,  502 
(1S91);  Porter  v.  Osmnn,  9S  N.  W.,  859,  860  (Mirh.,  1904);  Wcbrr  v. 
Lanman,   91    Md.,   90,   99    (1900);    Pratt   v.   Douglas,   38   N.  J.   Eq.,   516, 

523 


•347  THE  LAW  OF  FIXTURES.  [CIIAP.   IX. 

order  to  entitle  the  lessee  to  the  benefit  of  any  such  covenant  in 
his  favor,  the  erections  and  improvements  made  by  him  must  be 
of  the  character  authorized  in  the  lease  to  be  erected  by  him 
and  for  which  the  lessor  has  promised  to  pay;  and,  if  they  do 
not  correspond  with  the  erections  authorized  by  the  lease,  both 
as  to  the  place  and  character  of  the  erections,  the  lessor  is  not 
liable  to  pay  therefor.-     So,  where  the  lessor  covenanted  on  the 

542  (1S84);  Ee  Lamb,  65  N.  Y.  St.  E.,  460  (1894);  VanBibber  v.  Wil- 
liamson, 37  Fed.,  756,  759  (U.  S.  C.  C,  Ohio,  1889)  ;  Moore  v,  Simonson, 
27  Ore.,  117,  126  (1895);  Trimmier  v.  Darden,  61  S.  C,  220,  235 
(1901);  Corbett  v.  Laurens,  5  Eich.,  301  (S.  C.  Eq.,  1853);  Brooks  v. 
Brooks,  12  S.  C,  422,  464  (1879);  Casto  v.  Kintzel,  27  W.  Va.,  750,  756 
(1886);  see,  also,  Dean  v.  Feely,  69  Ga.,  804,  817  (1883);  Effinger  v. 
Hall,  81  Va.,  94,  109   (1885).] 

[Improvements  made  by  a  tenant  pur  autre  vie  go  the  heirs  of  cestui 
qui  vie.     Brugers  v.  Slidell,  27  La.  Ann.,  70   (1875).] 

[Where  a  tenant  for  life  is  appointed  by  court  as  agent  for  the  devisees 
in  remainder  to  rebuild  a  hotel  destroyed  by  fire,  he  can  not  bind  them 
personally  for  expenses  incurred.  Eudd  v.  Littell,  20  Ky.  L.  E.,  158 
(1898).] 

[A  tenant  under  the  owner  of  a  life  estate,  who  is  also  tenant  in  com- 
mon in  the  remainder,  can  not  recover  for  improvements  made  during  the 
life  estate  against  the  wishes  of  his  co-tenants.  Ashby  v.  Ashby,  59  N.  J. 
Eq.,  547,  560   (1900).] 

[A  tenant  for  life  can  not  charge  the  inheritance  with  the  expense  of  a 
new  heating  apparatus,  consisting  of  a  boiler  and  pipes,  although  there 
was  no  proper  method  of  heating  the  house,  and  it  was  essential,  in  order 
to  bring  the  conveniences  to  the  modern  standard  of  comfort.  Be  Gas- 
kell's  Set.  Est.  (1894),  8  Eepts.,  67.] 

[Where  a  building  has  been  destroyed  by  the  act  of  God,  the  tenant 
for  life  has  no  right  to  take  timber  from  the  estate,  to  its  injury,  to  re- 
build.    Miller  v.  Shields,  55  Ind.,  71,  77  (1876).] 

[Where  the  life  tenant  is  an  infant,  and  his  guardian,  by  authority  of 
court,  expends  his  funds  in  improvements,  the  life  tenant  is  entitled  to 
relief  if  the  parties  can  be  placed  in  statu  quo,  and  the  remainderman 
realize  his  original  estate  with  the  natural  increase.  Caldwell  v.  Jacob, 
16  Ky.  L.  E.,  21,  24   (1894).] 

2  0strander  v.  Livingston,  3  Barb.  Ch.,  416  (1848);  Fisher  v.  Fisher,  1 
Bradf.  Sur.,  335  (1850);  Pike  v.  Butler,  4  N.  Y.,  360  (1850);  reversing 
8.  c,  4  Barb.,  650;  Berry  v.  Van  Winkle,  2  N.  J.  Eq.,  390  (1841),  s.  c, 
Id.,  269.  In  this  case  the  landlord  agreed  that  the  lessee  might  erect  a 
"carding  and  fulling  mill  or  any  other  machinery,"  and  that  at  the  ex- 
piration of  the  lease  all  improvements  made  upon  the  lot  should  be  the 
property  of  the  lessor,  he  paying  for  the  same,  at  a  valuation.  The  tenant 
erected  buildings,  put  machinery  into  them,  and  among  the  rest  built  a 

524 


CHAP.   IX.]  VALUATION   OF   FIXTURES.  *347 

saw-mill  and  its  appendages,  the  mill  being  originally  only  a  cover  to  the 
water-wheel,  in  which  machinery  was  afterwards  placed  for  sawing  lum- 
ber. Held,  that  the  agreement  to  pay  for  improvements  referred  only 
to  such  as  he  had  previously  authorized  to  be  made;  that  the  words  "all 
improvements,"  which  the  landlord  agreed  to  pay  for,  referred  to  all 
such  only  as  by  the  previous  part  of  the  lease  it  had  been  agreed  might 
be  placed  upon  the  lot;  that  the  machinery  contemplated  could  have  been 
nothing  beyond  such  as  was  permanent  and  essential  to  the  building  as  a 
carding  or  fulling-mill,  with  liberty  to  change  it  if  necessary  or  desirable 
to  change  the  course  of  business;  and  that  nothing  but  the  buildings  and 
their  permanent  fixtures  (excluding  everything  movable)  should  be  valued. 
See,  also.  Woodward  v.  Payne,  16  Cal.,  444  (1860)  ;  also,  Hasty  v, 
"Wheeler,  12  Me.,  434  (1835),  where  the  meaning  of  the  word  "improve- 
ments" is  considered.  [Mullen  v.  Pugh,  16  Ind.  App.,  337,  340  (1896); 
Mcintosh  V.  St.  Philip's  Church,  120  N.  Y.,  7,  12  (1890),  afP'g  54  N.  Y. 
Super.,  291  (1887);  Brown  v.  Galagher,  5  Ohio  Dec,  556,  557  (1897).] 

[Where,  by  the  terms  of  a  lease,  the  tenant  is  to  "take  down  and  re- 
move *  *  *  *  and  erect  upon  said  land  in  place  thereof"  a  build- 
ing, which  is  to  be  valued,  he  can  not  claim  payment  for  alteration  or  im- 
provements in  the  original  structure.  Smith  v.  Cooley,  5  Daly,  401,  410 
(N.  Y.  C.  P.,  1874).] 

[A  lease  of  vacant  land  for  forty  years  contained  a  covenant  that  the 
lessee  was  to  yield  up  the  premises  "with  all  erections,  buildings  and  im- 
provements" subject  to  a  covenant  that  the  lessor  was  to  purchase  "all 
and  every  the  said  buildings,  erections,  and  fixtures. ' '  The  lease  was 
silent  as  to  the  purpose  for  which  the  buildings  were  to  be  erected.  Held, 
that  as  to  what  articles  the  lessor  was  required  to  pay  depended  upon 
the  intention  of  the  parties.  Where  the  words  "erections,"  "buildings," 
"improvements,"  and  "fixtures"  are  intended  as  convertible  terms,  and 
belong  to  the  same  category,  "fixtures"  relates  back  to  such  as  belong  to 
the  soil;  and  the  lessor  could  not  be  required  to  pay  for  trade-fixtures.  It 
is  no  argument  against  a  construction  of  a  covenant  that  such  construction 
does  not  change  common  law  rights.  Byrnes  v.  Macarthur,  2  N.  S.  W.  L. 
R.,  57   (1881).] 

[Under  a  covenant  to  pay  for  "erections  and  buildings"  the  lessor  is 
not  liable  for  crib-work  and  earth-filling  done  to  convert  a  lot  covered 
with  water  into  dry  land  level  with  adjoining  land.  Adamson  v.  Rogers, 
26  Can.,  159  (1896),  alTirming  22  Out.  App.,  415  (1895).  A  lessor  was 
to  pay  for  all  "permanent  improvements,  such  as  cistern,  privy,  cellar  ami 
fencing."  Ucld,  not  to  include  grading  of  lot,  shrubbery  nor  fruit  trees 
planted  for  lessee's  own  comfort.  Dcishlcr  v.  Golbaugh,  2  Ky.  L.  R.,  231 
(1881).] 

[An  undertaking  to  render  a  fcir  consideration  for  a  barn  can  not  be 
construed  to  include  the  cost  of  a  pump.  Smyth  v.  Stoddard,  203  111.,  424, 
431,    (1903).] 

[Where  the  lease  provided  that  the  lessee  should  keep  the  premises  in 
good   repair  and   under   good   fence,   ami   there  was   also   a   provision   that 

525 


•348  THE  LAW  OP  FIXTURES.  [CHAP.   IX. 

expiration  or  sooner  determination  of  the  term  to  re-purchase 
of  the  lessee  certain  fixtures  on  the  premises  at  a  valuation  by 
appraisers,  one  to  be  appointed  by  each  party,  the  agreement 
on  this  point  being  mutual,  and  subsequently  by  the  bankruptcy 
of  the  tenant  and  his  assignee's  declining  the  lease  (which  was 
[*348]  delivered  up  according  to  6  Geo,  IV.,  c.  16,  s.  75),  *the 

the  lessor  should  pay  for  improvements  made  by  the  lessee,  the  lessee  can 
recover  for  feuces  around  huid  not  enclosed  at  the  time  the  lease  was  exe- 
cuted, but  not  for  repairs  upon  fences  existing  at  that  time.  Hazlewood  v. 
Peunybacker,  50  S.  W.,  199,  202  (Tex.  Civ.  App.,  1899).] 

[Under  an  agreement  by  the  lessor  to  pay  for  "buildings  and  erections," 
he  should  pay  for  fixtures  and  mill  machinery  wliich  are  a  part  of  the 
realty,  although,  under  the  statute,  the  lessee  would  have  a  right  to  re- 
move them.  Re  Brantford  Power  Co.,  28  Ont.,  40,  44  (1896),  affirmed  24 
Ont.  App.,  301   (1897).] 

[Where  a  lease  Mas  made  for  the  purpose  of  building  a  dock  and  ship- 
yard, and  contained  a  provision  for  payment,  by  the  lessor,  for  "build- 
ings and  fixtures ' '  erected  by  the  lessees,  held,  that  the  provision  covered 
the  dock,  water-wheels,  shafting,  machinery,  a  floating-bridge  and  a  wire 
sign-board.     Grier  v.  Queen,  4  Exeh.,  1G8   (Can.,  1894).] 

[Erections  or  additions  to  the  premises  calculated  to  enhance  their  value 
and  render  them  desirable  as  residence  property  are  improvements  within 
the  covenants  of  the  lease.     Hopkins  v.  Oilman,  47  Wis.,  581   (1879).] 

[Where  the  south  wall  of  the  building  did  not  stand  upon  the  lessor's 
land,  but  he  had  full  opportunity  for  knowledge  of  the  facts,  he  will  not 
be  permitted  to  repudiate  the  valuation  when  he  finds  that  it  is  not  ac- 
ceptable to  him.    Yeatman  v.  elevens,  6  Mo.  App.,  210  (1878).] 

[Where  the  covenant  was  that  the  lessees  in  making  additions  and  im- 
provements, should  "preserve  unimpaired,  the  entrance  and  right  of  way," 
etc.,  and  their  complaint  averred  that  the  improvements  made  were  ' '  in 
pursuance  of  the  liberty  and  privilege  granted  to  them,"  the  defendant 
demurred  for  that  the  complaint  did  not  show  the  performance  of  the 
condition  precedent  that  the  alley  entrance  was  undisturbed.  The  court 
held  that,  if  the  proviso  was  a  condition  precedent,  if  the  buildings  were 
erected  by  the  lessees  "in  pursuance  of  the  liberty"  given  in  the  covenant, 
none  of  the  directions  could  have  been  disregarded,  and  the  avenue  into 
the  rear  must  have  been  left  open,  and  the  defendant  is  required  to  deny 
the  allegation.  "The  inclination  of  the  courts  is  to  relax  the  stringent 
rules  of  the  common  law  which  allows  no  recovery  upon  a  special  unper- 
formed contract  itself,  nor  for  the  value  of  the  work  done  because  the 
special  excludes  an  implied  contract.  In  such  case  if  the  party  has  de- 
rived any  benefit  from  the  labor  done,  it  would  be  unjust  to  allow  him 
to  retain  that  without  paying  anything."  The  law  implies  a  promise  to 
pay  such  remuneration  as  the  benefit  conferred  is  really  worth.  Gorman 
V,  Bellamy,  82  N.  C,  496  (1880).] 

526 


CHAP.   IX.]  VALUATION   OF   FIXTURES.  *348 

bankrupt  was  discharged  from  obligation  under  this  covenant, 
it  was  held  that  performance  of  the  covenant  could  not  be  en- 
forced by  the  assignee  against  the  lessor.^ 

"Where  a  lease  contains  a  covenant  that  at  the  expiration  of 
the  term  the  lessors,  their  successors  or  assigns,  shall  purchase  at 
an  appraisal  the  improvements  made  by  the  lessee,  which  at 
the  expiration  of  the  term  the  lessor  refuses  to  do,  the  cove- 
nant is  broken.  Of  this  covenant,  however,  there  can  be  but 
one  breach,  upon  which  the  whole  damage  becomes  recoverable, 
so  that  the  covenant  becomes  extinguished;  and  the  breach  not 
being  a  continuous  one,  one  who  after  such  breach  becomes  the 
assignee  of  the  lessor  with  knowledge  of  it,  does  not  take  the 
land  chargeable  with  the  covenant.- 

Wliile  it  is  a  general  rule  that  the  heir  cannot  be  prejudiced 
by  the  admission  or  act  of  the  administrators  or  executors,  it  is 
held  that  a  covenant  in  a  lease  to  pay  for  improvements  a 
valuation  to  be  appraised  at  the  end  of  the  term  by  appraisers 
to  be  appointed  by  the  parties,  their  heirs,  executors,  adminis- 
trators or  assigns,  authorizes  the  administrators  to  appoint  in 
the  absence  of  any  other  nomination  by  other  parties  in  inter- 
est; and  the  appraisement  made  by  the  person  so  appointed 
will  bind  the  heir.^ 

iKearscy  v.  Carstairs,  2  B.  &  Ad.,  716   (1831). 

zCoflin  V.  Talman,  8  N.  Y.,  465  (1854).  [Gardner  v.  Samuels,  116 
Cal.,  84,  88  (1897).] 

[One  to  whom  tlie  land  is  conveyed  after  the  expiration  of  the  lease, 
while  not  personally  bound  for  improvements  as  an  assignee  of  the  lease 
would  be,  yet  he  has  notice,  by  the  tenant 's  possession,  of  the  latter 's  equit- 
able lien,  and  can  not  recover  possession  until  the  lien  is  discharged. 
Eckc  V.  Fetzer,  65  Wis.,  55   (1886).] 

[The  agreement  docs  not  bind  the  assignee  of  the  lessors  if  the  subject- 
matter  is  personal  property;  and  not  in  any  case  unless  the  covenantor  has 
expressly  bound  his  assigns.  Etowah  Min,  Co.  v.  Wills  Mfg.  Co.,  121  Ala., 
672,  676  (1898).] 

[An  assignee  of  a  lease  made  a  sub-lease  agreeing  to  take,  at  a  valua- 
tion, buildings  to  be  placed  thereon  by  the  sub-lessee.  Later,  the  original 
lessor  took  an  assignment  of  the  reversionary  interest  of  his  lessee  and  of 
the  rights  of  the  assignee,  and  claimed  the  benefits  of  the  underlease. 
Eeld,  that  the  assignment  to  the  original  lessor  was  not  a  surrender  nor  a 
merger,  and  that  he  should  pay  for  the  improvements.  Bailey  v.  Kichard- 
son,  66  Cal.,  416   (1885).] 

sRenwick  v.  Renwick,  1  P.radf.,  234   (1850). 

527 


*349  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

"Wliere  a  lease  contains  a  covenant  that  at  the  expiration  of 
the  term  the  buiklings  and  improvements  shall  be  valued  by- 
indifferent  persons  to  be  chosen  by  the  lessor  and  lessee,  and 
that  the  appraised  value  shall  be  paid  to  the  lessee,  an  ex  parte 
appraisement  by  appraisers  appointed  solely  by  one  of  the 
jiarties  upon  the  refusal  of  the  other  to  appoint,  will  not,  in 
the  absence  of  a  provision  in  the  lease  authorizing  such  ex  parte 
proceeding,  be  binding  upon  the  party  not  joining  in  the  nomi- 
nation of  the  appraisers;  and  in  an  action  upon  the  covenant 
the  value  of  the  improvements  will  be  considered  as  un- 
liquidated.-* And  a  court  of  chancery  cannot  compel  the 
[*3-19]  *party  refusing  to  appoint  an  appraiser,  to  make  such 
choice.^  Neither  will  a  court  of  chancery  grant  specific  per- 
formance of  a  contract  to  purchase  tenant's  fixtures,  furniture, 
etc.,  at  a  valuation  to  be  made,  it  being  impossible  for  the  court 
to  decree  specific  performance  of  a  sale  or  purchase  at  a  valua- 
tion, unless  already  made,  on  account  of  the  impossibility  of 
working  out  such  a  decree.^^    But  upon  a  bill  for  the  specific  per- 

4  See  Holliday  v.  Marshall,  7  John.,  211  (1810);  Copper  v.  Wells,  1 
N.  J.  Eq.,  10   (1830).     See,  however,  Conner  v.  Jones,  28  Cal.,  59   (1865). 

[Where  the  lessor  ignores  the  nominee  of  the  lessee,  and  appoints  a  sole 
arbitrator,  proceedings  by  the  latter  will  be  restrained.  Farley  v.  San- 
son, 5  Ont.  Law  R.,  105,  112  (1902),  affirmed  in  40  Can.  Law  J.,  506 
(Ont.  App.,  1904).] 

[Where  the  appraisers  are  to  construe  the  contract  as  well  as  to  de- 
termine the  value  of  the  building,  an  appraisal  made  without  opportunity 
for  the  parties  to  be  heard,  is  invalid.  Janney  v.  Goehringer,  52  Minn.,  428 
(1893).] 

[Where  the  lessor  covenants  to  pay  the  valuation  of  buildings  upon  the 
demised  premises,  such  valuation  to  be  made  by  "disinterested  persons," 
but  no  provision  is  made  for  the  manner  in  which  the  appraisers  are  to 
be  appointed,  if  the  appraisers  are  appointed  by  the  lessor,  he  has  per- 
formed his  covenant,  there  being  no  evidence  that  the  appraisers  were  in- 
competent or  interested.     Gilbert  v.  Smith,  18  N.  Brunsw.,  211   (1878).] 

[Where  the  proviso  gives  the  lessor  an  option  to  purchase  any  build- 
ing erected  on  the  demised  lands  "at  a  price  to  be  fixed  by  the  said 
lessee,"  the  lessee  can  effectually  prevent  the  lessor  from  retaining  the 
building  by  simply  placing  the  price  as  far  beyond  its  value  as  he  thinks 
proper.     Gray  v.  McLennan,  3  Man.,  337,  348   (1886).] 

5  Copper  V.  Wells  {supra).  See,  also.  Darby  v.  Whitaker  {infra).  [Hug 
V.  Van  Burkleo,  58  Mo.,  202,  203   (1874).] 

6  Darby  v.  Whitaker,  5  W.  E.,  772  (1857).  See,  also.  Copper  v.  Wells 
{supra). 

528 


CHAP.   IX. J  VALUATION   OF   FIXTURES.  *350 

formance  of  an  agreement,  at  the  expiration  of  the  term  to 
take  buildings  and  improvements  at  a  valuation  to  be  made  by- 
indifferent  persons  to  be  chosen  by  lessor  and  lessee,  where  a 
specific  performance  has  become  impossible,  as  where  the  de- 
fendant has  placed  it  out  of  his  power  to  fulfil  his  part  of  the 
contract,  or  where  from  the  nature  of  the  contract  it  cannot 
be  decreed,  and  the  complainant  can  have  no  adequate  relief 
except  in  equity,  though  the  alternative  prayer  of  the  bill  be 
purely  for  compensation,  the  court  will  relieve  and  grant  com- 
pensation in  damages  for  permanent  and  valuable  improvements 
put  by  the  lessee  upon  the  demised  premises  under  such  agree- 
ment."^ So,  where  in  such  a  case  the  lessor  and  lessee  severally 
nominated  an  appraiser  who  could  neither  agree  as  to  the  valua- 
tion nor  upon  an  umpire,  and  thereupon  two  more  were  appoint- 
ed with  like  result,  whereupon  the  lessor  selected  a  third  and  the 
lessee  insisted  upon  the  one  he  had  nominated  secondly  and 
declined  to  nominate  another,  and  the  parties  themselves  could 
not  agree  as  to  the  value,  the  *lessor  was  held  entitled  [*350] 
in  equity  to  have  the  extent  of  his  liability  ascertained  and  ex- 
tinguished upon  payment  of  such  sum  as  should  be  ascertained 
to  be  the  just  value  of  the  buildings.^ 

But  it  is  held  that  where  the  person  named  by  both  parties  to  make  the 
valuation  is  refused  by  the  vendor  permission  to  enter  the  premises  for  that 
purpose,  the  court  will  make  a  mandatory  order  to  compel  the  rendor  to 
allow  the  entry  to  enable  the  valuation  to  proceed.  Smith  v.  Peters,  L.  K., 
20  Eq.,  511    (1875). 

7  Copper  v.  Wells  (supra)  ;  Berry  v.  Van  "Winkle,  2  N.  J.  Eq.,  269 
(1839)  ;  s.  C,  Id.,  390.  But  jurisdiction  will  not  be  extended  beyond  the 
claim  of  the  lessee  for  permanent  and  valuable  improvements  put  on  the 
premises  by  the  lessee  and  which  pass  to  the  lessor  at  the  end  of  the  term,  so 
as  to  include  a  claim  for  alleged  infringements  on  the  rights  of  the  lessee 
during  the  whole  term,  as  to  which  he  must  seek  a  remedy  at  law.  Berry 
V.  Van  Winkle  (supra).  [See  White  Stone  Quarry  Co.  v.  Belknap  Stone 
Co.,  13  Ky.  L.  R.,  244,  247  (1891)  ;  Hug  v.  Van  Burkleo,  58  Mo.,  202,  203 
(1874);  Biddle  v.  McDonough,  15  Mo.  App.,  532  (1884);  Hopkins  v.  Gil- 
man,  22  Wis.,  476  (1868).] 

8  Reformed  Protestant  Dutch  Church  of  New  York  v.  Parkhurst,  4 
BoHW.,  491  (1859).  [Cooke  v.  Miller,  54  Atl.,  927  (R.  I.,  1903);  see, 
also,  Conger  v.  Ensler,  85  App.  Div.,  564   (N.  Y.,  1903).] 

[If  the  arbitration  fails  through  no  substantial  fault  of  the  tenant, 
the  court  will  fix  the  value.  Bales  v.  Gilbert,  84  Mo.  App.,  675,  679 
(1900).] 

34  529 


*350  THE  LAW  OP  FIXTURES.  [CII.VP.   IX. 

Where  it  is  provided  in  the  knise  that  improvements,  con- 
sisting of  buildings,  machinery,  etc.,  to  be  erected  by  the  lessee 
at  his  own  expense,  shall  at  the  expiration  of  the  term  belong 
to  the  lessor,  he  paying  therefor  at  a  valuation,  such  improve- 
ments are  to  be  valued  as  thoy  are  at  the  expiration  of  the 
term.^ 

[See  Biddle  v.  Eamsey,  52  Mo.,  153,  158  (1873),  as  to  fraud  in  pre- 
venting a  valuation.] 

9  Berry  v.  Van  Winkle,  2  N.  J.  Eq.,  269,  277  (1839);  s.  c,  Id.,  390. 
f  Tuttle  V.  Leiter,  82  Fed.,  947,  950  (U.  S.  C.  C,  111.,  1897) ;  Edwards  v. 
Van  Patten,  46  Kan.,  509  (1891);  see,  also,  Jones  v.  Hoard,  59  Ark.,  42, 
47  (1894);  Finkelmeier  v.  Bates,  92  N.  Y.,  172,  179   (1883).] 

[Where  a  lease  provides  for  the  recovery,  by  the  lessee,  of  the  value  of  a 
building  "at  the  expiration  of  said  term,"  it  refers  to  the  time  provided 
by  the  lease  for  the  term  to  expire  in  the  event  that  there  was  any  default; 
and  if  the  lessor  forfeits  the  lease  on  account  of  the  default  of  the  lessee, 
the  latter  can  not  take  advantage  of  his  own  act,  but  must  wait  until  the 
expiration  of  the  full  period  named  in  the  lease.  Lent  v.  Curtis,  14  Ohio 
Circ,  Dec,  592,  604   (1902).] 

[Where  a  son  was,  in  return  for  taking  care  of  his  parents  for  life,  to 
have  the  use  of  a  farm,  and  to  be  paid  for  improvements  out  of  the  effects 
of  said  parents  after  their  decease,  the  value  of  such  improvements  is  to 
be  determined  by  their  reasonable  cost  at  the  time  they  were  made,  and 
not  by  their  value  at  the  time  of  the  expiration  of  the  tenancy;  other- 
wise, by  lapse  of  time,  the  improvements  might  become  valueless,  and  de- 
feat the  provision.     Wisehart  v,  Grose,  71  Ind.,  260   (1880).] 

[Under  eminent  domain  proceedings  instituted  before  the  completion  of 
the  term,  it  is  proper  to  award  to  the  tenant  the  value  of  his  buildings. 
Livingston  v.  Sulzer,  26  Supr.  Ct.   (19  Hun),  375,  382   (N.  Y.,  1879).] 

[Where  a  contract  provides  that  if  the  lessor  should  reimburse  the 
lessee  for  payments  made  upon  the  purchase  price  of  the  land,  and  also 
pay  for  the  value  of  improvements  placed  upon  the  land  by  the  lessee, 
the  property  is  to-  be  restored  to  the  lessor,  otherwise  to  belong  to  the 
lessee,  the  lessor  can  maintain  an  equitable  action  before  the  expiration 
of  the  lease  to  determine  the  value  of  the  improvements  so  that  he  can 
redeem.     Todd  v.  Kirby,  4  Ky.  L.  R.,  887    (1883).] 

[Where  improvements  are  to  be  appraised  "without  regard  to  the  situa- 
tion or  value  of  the  premises  leased, ' '  whatever  was  built  or  placed  thereon 
which  was  a  substantial  benefit  to  the  premises,  or  rendered  them  more  fit 
for  use  as  residence  property,  or  more  capable  of  producing  an  income, 
should  be  paid  for  at  "its  present  cost  or  actual  value,  and  not  what  the 
improvements  are  worth  to  the  tenant  irrespective  of  their  connection  with 
the  land.     Hopkins  v.   Oilman,  47  Wis.,  581    (1879).] 

[Where  a  lease  provided  that  the  lessor  should  pay  the  "value"  of  an 
improvement,  and  later  stipulated  that  the  lessor  was  not  to  pay  for  any- 


CHAP.  rX.]  VALUATION   OF   FIXTURES.  *351 

Where  the  lease  provides  that  the  appraisement  shall  be  made 
a  specified  number  of  days  before  the  expiration  of  the  term, 
though  it  is  not  done  within  that  time,  yet  where  there  has 
been  a  fair  effort  on  the  part  of  the  lessee  to  have  the  improve- 
ments appraised,  and  they  have  been  in  fact  appraised  before 
the  expiration  of  the  term  and  their  value  has  also  been  ascer- 
tained and  proved  to  the  court,  and  the  heirs  of  the  lessor  have 
received  the  benefit  of  such  improvements  in  the  enhanced  value 
of  the  property,  the  specified  time  will  not  in  equity  be  con- 
sidered as  of  the  essence  of  the  contract,  and  the  lessee  has  in 
equity  a  lien  upon  the  premises  for  the  value  of  such  improve- 
ments.io  But  where  the  lease  provides  for  the  payment  to  the 
lessee  at  the  end  of  the  term  of  the  appraised  value  of  buildings 
to  be  erected  on  the  demised  premises,  and  before  that  time  the 
lessor  re-enters  to  enforce  a  forfeiture  for  non-payment  of  rent 
in  accordance  with  the  terms  of  the  lease,  the  lessee  cannot 
maintain  a  bill  for  the  value  of  his  improvements.  If  he  has 
any  remedy  in  such  a  case  he  must  wait  until  the  time  fixed 
by  the  contract  has  expired ;  and  he  cannot,  by  his  own  default, 
change  in  his  own  favor  the  terms  of  the  contract,  and  fix  upon 
the  lessor  a  contract  he  never  made.^^ 

*For  a  further  consideration  of  the  subject  of  covenants  [*351] 
to  pay  for  improvements  at  a  valuation  or  to  grant  a  renewal  of 
the  lease,  etc.,  and  other  similar  covenants,  reference  is  made  to 
the  authorities  cited  in  the  note  below.12 

thing  except  the  actual  ' '  cost ' '  of  the  improvement,  and  then  provided  for 
appraisers  in  case  of  disagreement,  held,  that  the  lessor  could  only  be 
compelled  to  pay  the  value,  not  exceeding  the  cost,  as  it  is  reasonable  to 
suppose  that  the  api)raisers  were  to  pass  upon  the  value  and  not  arbitrate 
as  to  the  cost.  Hart  Lumber  Co.  v.  Everett  Land  Co.,  20  Wash.,  71,  73 
(1898).] 

loRenwick  v.  Renwick,  1  Bradf.,  234   (1S50). 

n  Lawrence  v.  Knight,  11  Cal.,  298  (1858).  [Johnston  v.  Bates,  48  N. 
Y.  Super.,  180  (1882).] 

In  like  manner  a  provision  for  a  valuation  three  months  previous  to  the 
determination  of  the  term,  refers  to  its  expiration  by  effluxion  of  time;  and 
in  case  of  forfeiture,  no  valuation  need  be  made.  Storer  v.  Hunter,  3  B.  & 
C,  368  (1824).  See,  also,  Fairburn  v.  Eastwood,  6  M.  &  W.,  679  (1840). 
[Wilcoxen  v.  Hybargcr,  1  Ind.  Ter.,  138,  144  (1897);  Switzer  v.  Allen, 
11   Mont.,  160   (1891).] 

i-'As  to  tenant's  right  to  the  possession  of  the  premises  till  p.iid  the 
value  of  his  improvements,  see  Van  Rensselaer  v.  Pcnniman,  6  Wend.,  569 

531 


*351  THE  LAW  OF  FIXTURES.  [CHAP.   IX. 

(1831);  Holsman  v.  Abrams,  2  Duor,  435  (1853);  Tallman  v.  Coffin,  4  N. 
Y.,  134  (1850);  Pearoe  v.  Colden,  8  Barb.,  522  (1850).  [Mullen  v.  Pugh, 
16  Ind.  App.,  337,  340  (1896);  Bresler  v.  Darmstaetter,  57  Mich.,  311 
(1885);  VanReurcn  v.  Wothcrspoon,  164  N.  Y.,  368,  379  (1900);  74  App. 
Div.,  123  (1902);  Conger  v.  Easier,  85  App.  Div.,  564  (N.  Y.,  1903); 
Paine  v.  Keetor,  14  Supr.  Ct.  (7  Huu),  89  (N.  Y.,  1876);  Lent  v.  Curtis, 
14  Ohio  Circ.  Dec.,  592,  597  (1902);  Taylor  v.  Maule,  2  Walker,  539,  544 
(Pa.,  1864)  ;  see,  also,  Jones  v.  Hoard,  59  Ark.,  42,  47  (1894)  ;  Griffin  v. 
Marine  Co.,  52  111.,  130,  148  (1869);  Fraer  v.  Washington,  125  Fed.,  280, 
283  (U.  S.  C.  C.  A.,  Ind.  Ter.,  1903) ;  Knight  v.  Orchard,  92  Mo.  App., 
466  (1901);  Be  Coatsworth,  37  App.  Div.,  295,  307  (N.  Y.,  1899);  Cicalla 
V.  Miller,  105  Tenn.,  255  (1900);  Brummet  v.  Campbell,  32  Wash.,  358, 
368   (1903);   Wilkes  v.  Hunt,  4  Wash.,   100,  102   (1892).] 

[The  plaintiff  has  the  right,  by  virtue  of  the  conditions  in  the  lease,  to 
remain  in  possession  until  the  improvements  are  ascertained  and  paid  for, 
with  interest,  inasmuch  as  the  landlord  refused  to  renew;  but  this  does 
not  excuse  him  from  continuing  to  pay  rent  or  taxes  as  provided  in  the 
lease.     Hopkins  v.  Gilman,  47   Wis.,  581,   590    (1879).] 

[The  lessee  has  an  equitable  lien  for  the  value  of  the  improvements  at 
the  termination  of  the  lease,  and  can  hold  possession  until  paid.  Where 
there  is  a  provision  that,  if  the  lessor  shall  not  be  able  to  purchase,  the 
lease  shall  be  continued  until  he  is  able,  will  not  give  the  lessor  unlimited, 
but  reasonable  time  to  make  payment.  Where  the  property  is  ordered  sold 
to  satisfy  the  lien,  it  is  not  improper  to  postpone  ascertainment  of  the 
value  of  the  improvements  until  after  the  sale.  Gray  v.  Cornwall,  16  Ky. 
L.  E.,  228   (1894).] 

[See  Ecke  v.  Fetzer,  65  Wis.,  55,  65  (1886),  as  to  the  method  of  comput- 
ing the  amount  payable  where  the  tenant  retains  possession  some  time 
after  the  expiration  of  the  lease.] 

[In  Speers  v.  Flack,  34  Mo.,  101,  103  (1863),  it  is  held  that,  unless  there 
is  a  reservation  of  the  right  to  retain  possession,  the  time  being  definite, 
no  such  right  exists.] 

As  to  the  nature  of  an  appraisal,  and  the  setting  it  aside  for  the  mis- 
conduct of  the  appraisers,  etc.,  see  Van  Cortland  v.  Underhill,  17  John.,  405 
(1819).  [Smith  v.  Cooley,  5  Daly,  401,  409  (N.  Y.  C.  P.,  1874).  In 
Graf  v.  Friedlander,  33  La.  Ann.,  188,  189  (1881),  the  agreement  was  held 
binding.  Where  there  is  no  charge  of  fraud,  the  finding  of  the  arbitrators 
will  not  be  disturbed.] 

That  the  covenant  to  renew  does  not  necessarily  imply  a  renewal  with  the 
same  covenants  as  in  the  original  lease,  see  Rutgers  v.  Hunter,  6  John.  Ch., 
215  (1822),  applied  to  a  covenant  to  pay  for  improvements.  [Carr  v. 
Ellison,  20  Wend.,  178  (N.  Y.,  1838)  ;  Leary  v.  Ilutton,  12  N.  Y.  Supp., 
476  (1890);  see,  also,  Kash  v.  Huncheon,  1  Ind.  App.,  361  (1890);  Orphan 
Soc.  V.  Waterbury,  8  Daly,  35  (N.  Y.,  1878).  Where  a  lease  provides  for 
renewing  the  lease  upon  the  same  conditions,  a  renewal  does  not  affect  the 
lessee's  rights.  Livingston  v.  Sulzer,  26  Supr.  Ct.  (19  Hun),  375,  381 
(N.  Y.,  1879).] 

532 


CHAP.  IX.]  VALUATION  OF  FIXTURES.  *351 

For  the  construction  of  several  special  agreements  to  pay  the  appraised 
value  of  buildings,  etc.,  see  Lanaetti  v.  Anderson,  6  Cow.,  302  (1826) ; 
Woodward  v.  Payne,  16  Cal.,  444  (1860) ;  Wray  v.  Rhinelander,  52  Barb., 
553  (1868);  s.  C,  39  How.  Pr.,  299.  See,  also,  Duffield  v.  Whitlock,  26 
Wend.,  55  (1841)  ;  s.  C,  1  Hoff.  Ch.,  110,  where  the  covenant  for  renewal 
was  considered  void  for  uncertainty.  [Anderson  v.  Swift,  106  Ga.,  748 
(1899) ;  Bass  v.  Metropolitan  R.  R.  Co.,  82  Fed.,  857,  862  (U.  S.  C.  C, 
111.,  1897)  ;  Tuttle  v.  Leiter,  82  Fed.,  947  (U.  S.  C.  C,  111.,  1897) ;  Smyth  v. 
Stoddard,  203  111.,  424  (1903),  afif'g  105  ID..  App.,  510  (1903);  Pearson  v. 
Sanderson,  128  111.,  88  (1889),  aff'g  28  111.  App.,  571  (1887);  Gardner 
V.  Watson,  18  111.  App.,  386  (1885)  ;  Hansen  v.  Meyer,  81  111.,  321  (1876)  ; 
Coles  V.  Peck,  96  Ind.,  333  (1884)  ;  Stewart  v.  Pier,  58  Iowa,  15  (1882)  ; 
Vorse  V.  Des  Moines  Marble  Co.,  104  Iowa,  541  (1898)  ;  Bullock  v.  Gtinsted, 
95  Ky.,  261  (1894)  ;  Handy  v.  Aldrich,  168  Mass.,  34  (1897) ;  Mosely  v. 
Allen,  138  Mass.,  81  (1884)  ;  Hangsterfer  v.  Shafer,  130  Mich.,  223 
(1902);  McAllister  v.  Reel,  53  Mo.  App.,  81  (1892);  59  Mo.  App.,  70 
(1894)  ;  Chandler  v.  Oldham,  55  Mo.  App.,  139  (1893)  ;  Newhoff  v.  Mayo, 
48  N.  J.  Eq.,  619  (1891)  ;  Schoellkopf  v.  Coatsworth,  166  N.  Y.,  77  (1901), 
aff'g  55  App.  Div.,  331  (1900);  Smith  v.  St.  Philip's  Church,  107  N.  Y., 
610  (1888);  Finkelmeier  v.  Bates,  92  N.  Y.,  172  (1883),  aff'g  48  N.  Y. 
Super.,  433  (1882);  Neiderstein  v.  Cusick,  178  N.  Y.,  543  (1904),  revers- 
ing 83  App.  Div.,  36  (1903);  Howe's  Cave  Ass'n  v.  Houck,  73  Supr.  Ct. 
(66  Hun),  205  (N.  Y.,  1892);  Bates  v.  Johnston,  65  Supr.  Ct.  (58  Hun), 
528  (1890),  aff'd  126  N.  Y.,  681  (1891);  Morton  v.  Weir,  12  Supr.  Ct.  (5 
Hun),  177  (N.  Y.,  1875);  Be  Henshaw,  75  N.  Y.  Supp.,  1047  (1902); 
Thompson  v.  Rose,  8  Cowen,  266  (N.  Y.,  1828)  ;  Elevator  Co.  v.  Brown, 
36  Ohio  St.,  660  (1881) ;  Parker  v.  Page,  41  Ore.,  579  (1902) ;  East  Sugar- 
Loaf  Co.  v.  Wilbur,  5  Pa.  Dist.,  202  (1895)  ;  Bream  v.  Dickerson,  21  Tenn., 
126  (1840)  ;  Allen  v.  Gates,  73  Vt.,  222,  227  (1900)  ;  King  v.  Wilson,  98 
Va.,  259  (1900);  Ward  v.  Toronto,  29  Ont.,  729  (1898);  Toronto  Trusts 
Corp.  v.  White,  3  Ont.  Law,  519  (1902);  Nudell  v.  Williams,  15  Up.  Can. 
C.  P.,  348  (1865);  Sears  v.  Saint  John,  18  Can.,  702  (1890),  aff'g  Saint 
John  v.  Sears,  28  N.  Brunsw.,  1  (1889)  ;  Smith  v.  Gilbert,  18  N.  Brunsw., 
211  (1878);  Irvin  v.  Simonds,  11  N.  Brunsw.,  190  (1864);  RoUcston  v. 
New  (1858),  4  Kay  &  J.,  640;  Grey  v.  Cuthbertson  (1785),  2  Chitty's  R., 
482;  Malmsbury  Min.  Co.  v.  Tucker,  3  Vict.  L.  R.  (Law),  213  (1877); 
see,  also.  National  Waterworks  Co.  v.  Kansas  City,  62  Fed.,  853  (U.  S.  C. 
C.  A.,  Mo.,  1894).] 

As  to  when  the  appraised  value  of  buildings,  etc.,  is  a  lien  upon  the  de- 
mised property,  sec  Copper  v.  Wells,  1  N.  J.  Eq.,  10,  18  (1830)  ;  Berry  v. 
Van  Winkle,  2  Id.,  269,  390  (1839)  ;  Whitlock  v.  Duffield,  2  Edw.  Ch.,  466 
(1834).  [Mullen  v.  Pugh,  16  Ind.  App.,  337,  339  (1896);  Leahy  v. 
Reynolds,  4  Ky.  L.  R.,  995  (Super.,  1883)  ;  The  Confiscation  Cases,  1  Wood, 
221,  227  (U.  S.  C.  C,  La.,  1872)  ;  Swift  v.  Shcehy,  88  Fed.,  924  (U.  S.  C.  C, 
Mo.,  1898);  Fowler  v.  Mutual  Life  Ins.  Co.,  .35  Supr.  Ct.  (28  Hun).  195 
(N.  Y.,  1882);  Anderson  v.  Ammonpft.  77  Tenn.,  1  (1882);  Hite  v.  Parks, 
2  Tenn.  Ch.,  373   (1875);   sec,  also,  White  Stone  Quarry  Co.  v.  Belknap 

533 


*351  THE  LAW  OF  FIXTURES.  [cHAP.  IX. 

Stone  Co.,  13  Ky.  L.  R.,  244,  247  (1891);  New  York  Dyeing  Est.  v. 
DeWestenborp,  53  Supr.  Ct.  (46  Ilun),  281,  282  (N.  Y.,  1887).  Where  a 
lease  provides  that  structures  erected  by  the  lessee  might  be  removed  at  his 
option,  and  that  they  should  not  be  considered  as  attached  to  the  laud,  he 
does  not  acquire  any  equitable  lien  upon  the  land  for  their  value  which 
would  entitle  him  to  require  a  sale  of  the  property.  Phillips  v.  Reynolds, 
20  Wash.,  374,  377   (1898). j 

[See  Ward  v.  Hall,  34  N.  Brunsw.,  600  (1899),  in  regard  to  an  option 
by  the  lessor  to  pay  for  improvements  or  renew.] 

[A  lease  contained  the  following  clause:  "Provided  that  the  said 
lessee  shall  have  the  privilege  at  the  expiration  of  the  term  hereby  granted 
of  removing  any  building  erected  on  the  said  lands  hereby  demised,  unless 
the  same  are  purchased  by  the  lessor  at  a  price  to  be  fixed  by  the  said 
lessee."  Held,  that  the  lessor  must  signify  his  intention  to  buy  before  the 
lessee  is  bound  to  fix  the  price;  and  he  must  make  his  election  to  purchase 
before  the  expiration  of  the  term.  Gray  v.  McLennan,  3  Man.,  337,  348 
(1886).] 

[Where  the  lessor  fails  to  give  notice  of  his  option  to  terminate  the  lease, 
and  pay  the  appraised  value  of  improvements,  it  is  unnecessary  to  appraise 
their  value.     Eberts  v.  Fisher,  54  Mich.,  294,  298   (1884).] 

[A  lease  provided  for  a  right  of  renewal  by  the  lessee,  with  a  covenant 
that  if  the  lessor  and  lessee  failed  to  agree  as  to  the  rental,  the  lessor 
should  purchase  the  improvements,  etc.  Held,  that  the  provision  emTiraced 
a  failure  by  the  lessee  to  renew  the  lease,  as  the  lessee  could  have  demanded 
a  renewal  and  at  the  same  time  refused  to  agree  to  any  fair  rental.  Car- 
penter V.  Pocasset  Mfg.  Co.,  180  Mass.,  130  (1901).] 

[Where  a  lease  for  twelve  years  provides  that  the  lessor  will  buy  struc- 
ture erected  by  the  lessee,  or  extend  the  lease,  an  extension  for  one  day  by 
the  lessor  will  not  defeat  the  lessee's  rights.  Phillips  v.  Reynolds,  20 
Wash.,  374,  377   (1898).] 

[Where  the  lessor  has  a  right  of  election  to  grant  a  renewal,  or  pay  the 
value  of  the  house,  he  has  made  his  election  when  an  appraisement  is  had 
under  the  covenant  of  renewal,  and  has  no  right  afterwards  to  claim  the 
building  in  lieu  of  renewing.  Crosby  v.  Moses,  48  N.  Y.  Super.,  146,  148 
(1882).] 

[Where  a  lease  provided  for  the  erection  of  a  building  by  the  lessee, 
and  made  it  optional  with  the  landlord  to  buy  the  building  at  the  expira- 
tion of  the  term  or  continue  the  lease  for  another  term  upon  the  same 
conditions,  the  building  became  the  property  of  the  landlord  upon  the 
expiration  of  the  second  term.     Peirce  v.  Grice,  92  Va.,  763,  767   (1896).] 

[Where  a  lessee  has  a  right  to  remove  buildings  upon  the  termination  of 
the  lease  unless  the  lessor  elects  to  retain  them  at  their  fair  value,  a  rail- 
road company,  seeking  to  condemn,  is  given  the  same  right  of  election. 
£e  Morgan  R.  R.  Co.,  32  La.  Ann.,  371,  378   (1880).] 

[As  against  execution  creditors  of  the  lessee,  the  lessors'  option  to  buy 
the  tenant's  fixtures  at  the  end  of  the  term  gave  them  no  title  to  such 

534 


CHAP.  IX.]  VALUATION  OF   FIXTURES.  *352 

As  to  what  particular  articles,  for  which  the  purchaser  or 
tenant  may  be  called  upon  to  pay,  are  to  be  included  in  the 
stipulation  (sometimes  occurring  in  agreements  of  sale,  and  in 
demises  of  premises)  that  "the  fixtures  are  to  be  taken  at  a 
valuation,"  there  seems  to  have  been  no  decisions.  On  this 
subject  Mr.  Ferard  ^^  makes  the  following  observations:  "With 
respect  to  the  precise  import  of  these  terms  in  different  cases, 
there  is  very  little  assistance  to  be  derived  from  the  authorities ; 
and  the  practice  of  the  individuals  who  are  usually  referred  to 
on  these  occasions,  seems  to  be  governed  by  no  uniform  or  very 
definite  rule.  It  would  seem,  however,  that  when  a  stipulation 
of  this  kind  occurs  on  the  sale  of  a  house,  those  things  only  are, 
in  strictness,  to  be  comprehended  in  the  valuation,  which  would 
be  deemed  personal  assets  as  between  *heir  and  executor,  [*352] 
and  which  would  not  pass  with  the  inheritance  as  part  of  the 
freehold  of  the  house.i'* 

fixtures  until  they  were  appraised  and  accepted.  Seitzinger  v.  Marsden,  2 
Pennypacker,  463,  473  (Pa.  Supr.,  1882).] 

[A  liquidator  has  no  greater  right  against  the  landlord  than  the  tenant 
would  have.  Pender  v.  Bathgate  Oil  Co.  (1887),  24  Scot.  Law  Kep.,  519, 
520  (1887).] 

[In  the  absence  of  proof,  the  right  to  compensation  will  be  held  to  have 
been  waived  or  satisfied  after  thirteen  years.  Unz  v.  Price,  22  Ky.  L.  R., 
791,  792  (1900).] 

[A  stipulation  in  the  lease  "that  in  case  of  failure  of  the  lessor's  title 
to  the  lot,  payment  was  to  be  made  for  all  the  lessee's  permanent  and 
valuable  improvements  thereon,"  does  not  figure  where  there  is  no  failure 
nf  title.     Douglass  v.  Anderson,  28  Kan.,  262,  264   (1882).] 

[Where  a  lease  requires  the  lessee  to  erect  buildings,  and  there  is  no 
agreement  for  their  removal,  he  has  no  right  to  remove  them.  Peiree  v. 
Grice,  92  Va.,  763,  767   (1896).] 

[In  Be  Dawdy  (1885),  15  Q.  B.  D.,  426,  the  agreement  was  held  to  be 
for  tlic  appointment  of  valuers,  not  arbitrators.] 

[See  M'Elroy  v.  Brooke   (1885),   16  L.  R.,  Ire.,  46,  as  to  usage.] 

[In  an  action  of  trover,  after  the  expiration  of  a  lease,  for  machinery 
placed  upon  the  premises  by  the  tenant,  it  is  no  defense  that  there  is  an 
agreement  in  regard  to  valuation,  where  the  pica  does  not  allege  that  the 
lessors  are  ready  and  willing  to  perform  the  agreement.  Pawtucket  Inst. 
V.  Almy,  13  R.  I.,  68,  70  (1880).  But  actual  tender  is  unnecessary;  White 
Stone  Quarry  Co.  v.  Belknap  Stone  Co.,   13  Ky.  L.  R.,  244,  246    (1801).] 

13  Ferard  Fixt.,  *221. 

I*  See  Ilitcliman  v.  Walton,  4  M.  &  W.,  400   (1S3S). 

[A  grantee  of  a  brewery  agreed  in  pny  for  the  "fixed  plant"  according 

535 


•352  THE  LAW  OF  FIXTURES.  [CHAP,   IX. 

""Wlien  the  like  stipulation  occurs  upon  a  demise  of  premises, 
it  nnist,  it  is  conceived,  bo  interpreted  to  mean,  that  all  those 
articles  are  to  be  valued  to  the  incoming  tenant  which  would 
be  fixtures  as  between  a  landlord  and  tenant,  and  which  the 
tenant  would  be  at  liberty  to  remove  if  he  had  himself  put  them 
up  during  the  term.  It  is  apprehended,  therefore,  that  the 
tenant  will  not  be  bound  to  pay  for  anything  but  what  properly 
falls  within  the  rule  here  suggested, 

"So,  where  a  tenant  by  assignment  of  his  lease  pending  the 
term,  or  at  his  outgoing,  disposes  of  his  fixtures  under  a  similar 
agreement,  he  may  be  considered  as  transferring  to  the  pur- 
chaser all  those  articles  which  he  would  have  been  entitled  to 
remove  from  the  premises,  either  by  reason  of  having  taken 
them  as  fixtures,  or  as  having  himself  erected  them  during  the 
term. 

"But  in  all  these  cases  the  intention  of  the  parties  is  the 
true  criterion  to  be  consulted ;  and  this  intention  is  to  be  col- 
lected from  the  general  nature  of  the  contract,  and  from  the 
description  of  the  premises,  and  the  purposes  for  which  they  are 
usually  occupied.  It  may  also  be  inferred  from  a  custom  pre- 
vailing in  the  particular  district,  and  with  reference  to  which 
the  parties  may  be  supposed  to  have  contracted." 

to  a  valuation  to  be  made.  The  question  arose  whether  a  chimney-shaft,  a 
partition  and  staging  ought  to  be  included  in  the  valuation.  Held,  that 
they  should  not,  as  ' '  plant ' '  was  dead  stock  which  assisted  in  production, 
but  did  not  act,  being  that  through,  and  by  means  of,  and  in  which,  action 
took  place,  and  included  pipes,  vats,  and  the  like.  Be  Nutley  (1894),  96 
Law  Times,  585.] 


536 


CHAPTER  X.  [*353] 

OF  THE  SEIZURE  AND  SALE  OF  FIXTURES  ON  EXECU- 
TION. 

I.    As  Against  the  Owner  of  the  Fee. 

Although,  as  will  be  seen  in  the  next  section,  whatever  may 
be  removed  by  the  tenant  as  between  landlord  and  tenant,  may 
be  taken  in  execution  as  against  the  tenant,  yet  as  against  one 
who  is  the  owner  of  the  estate  in  fee  as  well  as  of  the  fixtures, 
they  are  part  of  the  freehold  and  cease  to  be  goods  and  chattels, 
and  therefore  may  not  be  seized  as  goods  and  chattels  by  the 
sheriff  under  a  fi.  fa.  as  against  the  owner  of  the  fee.^     And  the 

iSee  Year  Books,  21  Hen.  VII.,  27  (1506);  20  Hen.  VII.,  13  b  (1504); 
Cro.  Eliz.,  374;  Owen,  70;  Place  v.  Fagg,  4  Man.  &  Ry.,  277  (1829)  ;  s.  c, 
7  L.  J.,  K.  B.,  195,  machinery  in  a  grist  mill;  Winn  (or  Wynne)  v.  Ingleby 
(or  Ingilby),  5  B.  &  Aid.,  625  (1822)  ;  s.  c,  1  D.  &  R.,  247,  set-pots,  ovens 
and  ranges;  Eice  v,  Adams,  4  Harring.,  332  (1845),  a  steam-engine,  boiler, 
cranes,  cupola  and  fan  erected  in  an  establishment  for  manufacturing 
steam-engines;  Ex  parte  Keynal,  2  M.  D.  &  DeG.,  443,  461  (1841);  Green 
V.  Phillips,  26  Gratt.,  752  (1875),  machinery  in  a  sash,  door  and  blind 
factory.  See,  also.  Steward  v.  Lombe,  1  B.  &  B.,  506  (1820)  ;  s.  c,  4 
Moore,  281.  [Off  v.  Finkelstein,  200  111.,  40,  46  (1902)  ;  Citizens'  Bank  v. 
Crooks,  21  La.  Ann.,  324  (1869)  ;  Humphreys  v.  Newman,  51  Me.,  40 
(1863);  Towne  v.  Fiske,  127  Mass.,  125,  132  (1879);  McAuliffe  v.  Mann, 
37  Mich.,  539,  542  (1877);  Jones  v.  Bull,  85  Tex.,  136  (1892);  Philion  v. 
Bisson,  23  Low.  Can.  Jiir.,  32  (187S);  Dixon  v.  Mackay,  24  Can.  Law 
T.,  Occ.  N.,  28  (Man.,  1903);  see,  also,  Allen  v.  Scott,  38  Mass.,  25,  28 
(1838);   Landell  v.  Harrison,  16  Phila.,  85   (1882).] 

[The  following  are  not  subject  to  levy  and  sale  as  chattels:  Buildings. 
Davis  V.  Eastham,  81  Ky.,  116  (1883);  Whiteman  v.  LeBlanc,  28  La.  Ann., 
430  (1876);  Freeman  v.  Lynch,  8  Neb.,  192  (1879);  Lipsky  v.  Borgman, 
52  WiB.,  256  (1881)  ;  Bald  v.  Hagar,  9  Up.  Can.  C.  P.,  382,  although  rest- 
ing upon  blocks.  Saw-mill,  grist-mill,  and  boiler.  Tison  v.  Taniohill,  28 
La.  Ann.,  793,  794;  Davis  v.  Eastham,  81  Ky.,  116  (1.SS3).  A  portable 
engine  afTixed  to  keep  it  steady,  although  it  is  the  intention  of  the  land- 
owner to  substitute  another.  Cross  v.  Barnes  (1877),  46  L.  J.,  Q.  B.,  479. 
Main  driving  belt.     Friodly  v.  Giddings,  119  Fed.,  438,  446   (U.  S.  C.  C, 

537 


*353  TUB  LAW  OP  FIXTURES.  [CIIAP.  X. 

Vt.,  190:2).  Engines,  boilers,  heaters,  iron  smoke-stacks,  electric  dynamo, 
electric  wiring,  shafting  ami  belting.  Seiberling  v.  Miller,  106  111.  App., 
190  (1902),  afif'd  in  207  111.,  443  (1904);  New  York  Security  Co.  v.  Sara- 
toga Light  Co.,  95  Supr.  Ct.  (88  Hun),  569  (N.  Y.,  1895).  Machinery 
permanent iy  attached.  \Villis  v.  Moore,  ijij  Tex.,  628  (1886).  Mining 
machinery,  although  moved  i'rum  place  to  place  over  the  lot  as  the  mineral 
is  exhausted.  Rogers  v.  Ontario  Bank,  21  Ont.,  416  (1891).  Steam-pipes 
are  not  subject  to  levy,  although  the  radiators,  with  their  valves,  standing 
upon  the  lloor,  and  to  which  the  pipes  are  screwed,  are  subject  to  levy. 
National  Bank  v.  North,  160  Pa.  St.,  303  (1894).  An  iron  pier.  Harriman 
V.  Rockaway  Beach  Co.,  5  Fed.,  461  (U.  S.  Dist.  Ct.,  N.  Y.,  1880).  A 
fence.  Watterson  v.  Bonner  Co.,  19  Mont.,  554,  556  (1897).  A  statue 
resting  upon  a  base  placed  upon  a  stone  foundation,  all  cemented  together 
constituting  a  solid  mass,  with  stone  coping  intended  by  the  landowner  to 
be  permanent.  Oakland  Cem.  Co.  v.  Bancroft,  161  Pa.  St.,  197  (1894).] 
[Where  title  by  occupation  of  public  land  is  an  interest  in  real  estate, 
fixtures  thereon  can  not  be  levied  upon.  Roseville  Min.  Co.  v.  Iowa  Gulch 
Co.,  15  Colo.,  29  (1890).] 

[The  fact  that  the  owner  of  the  fee  is  also  lessee  of  two-thirds  of  the 
minerals  therein,  does  not  make  fixtures  subject  to  execution.  Ritchie  v. 
McAllister,  14  Pa.  Co.,  267,  270   (1894).] 

[A  creditor  of  the  community  can  not  seize  the  buildings  placed  by  the 
community  upon  the  wife's  plantation  separate  and  apart  from  the  land 
of  the  wife.     Whiteman  v.  LeBlanc,  28  La.  Ann.,  430   (1876).] 

[Where  two  railroad  spike-machines  were,  after  being  attached,  annexed 
to  the  realty,  a  subsequent  levy  and  sale  was  invalid;  and  even  if  regarded 
as  personal  property,  the  creditor  by  leaving  them  in  the  possession  of  the 
debtor  for  two  years  releases  his  lien.  McFadden  v.  Crawford,  36  W.  Va., 
671  (1892).  Where  articles  levied  upon  are,  with  the  consent  of  the  execu- 
tion-creditor, attached  to  the  freehold  so  as  to  become  a  part  of  the  realty, 
the  lien  of  the  execution  is  thereby  released.  Patton  v.  Moore,  16  W.  Va., 
428,  439   (1880).] 

See,  however,  Burk  v.  Baxter,  3  Mo.,  207  (1833),  where,  however,  the 
stills  were  considered  personal  property. 

Fixtures  demised  with  a  paper-mill  and  used  by  the  tenant  in  the  manu- 
facture of  paper,  are  not  liable  to  be  seized  under  an  extent  for  duties  upon 
paper  owed  by  the  tenant  to  the  crown,  as  utensils  for  the  making  of  paper, 
etc.,  in  the  custody  of  the  maker  thereof,  within  the  statute,  34  Geo.  III.,  c. 
20,  8.  27.  It  seems  that  even  if  the  fixtures  belonged  to  the  tenant  instead 
of  the  landlord,  and  were  removable  as  against  the  landlord,  they  would  not 
be  "utensils"  within  the  act.  The  articles  in  question  were  presses  fixed  to 
the  ground,  heaters  and  pipes,  copper  and  furnace  fixed  in  brick-work, 
stuflF-chests  moving  in  a  groove  in  sleepers  put  in  the  ground  from  which 
they  could  not  be  removed  without  removing  the  sleepers  and  unscrewing 
the  groove,  pumps  and  engines,  the  former  fixed  to  the  latter  which  were 
fastened  to  the  ground  by  beams,  a  wooden  shoot  and  trunk  fixed  to  ma- 
chinery attached  to  the  ground,  water-wheels,  fly-wheel  and  pit-wheel,  and 

538 


CHAP.   X.]  SALE   OF   FIXTURES   ON   EXECUTION.  *354 

rule  is  the  same  whether  there  is  an  actual  *annexation,  [*354] 
or  only  a  constructive  annexation  of  the  article  to  the  realty,  as 
in  the  case  of  mill-stones,  movable  articles  which  are  usually 
valued  as  between  out-going  and  in-coming  tenants.^ 

three  engines,  all  which  the  court  considered  to  be  fixtures.  Att'y  Gen.  v. 
Gibbs,  3  Y.  &  J.,  333  (1829). 

In  Taffe  v.  Warnick,  3  Blackf.,  Ill  (1832),  the  opinion  is  expressed  that 
the  same  rule  should  be  applied  between  debtor  and  creditor  that  is  applied 
between  landlord  and  tenant,  and  this  irrespective  of  the  question  whether 
the  debtor  is  the  owner  of  the  real  estate  to  which  the  fixture  is  annexed,  or 
only  a  tenant;  but  the  point  does  not  appear  to  have  been  necessary  to  the 
decision  of  that  case,  the  article  in  question  being  a  carding-machine  "in 
no  manner  fastened  or  fixed  to  the  building,  except  as  it  stood  upon  the 
floor  in  its  usual  place  of  operation;"  and  the  dictU7n  itself  seems  clearly 
contrary  to  the  general  current  of  authority,  and  does  not  appear  to  have 
been  approved  by  any  subsequent  cases. 

See,  also,  Krueger  v.  Pierce,  37  Wis.,  269  (1875),  where  without  deter- 
mining whether  the  property  in  question  had  become  a  part  of  the  realty,  it 
was  held  that  lath,  shingles  and  lumber  obtained  by  a  debtor  for  the  pur- 
pose of  repairing  the  dwelling-house  occupied  by  him  as  a  homestead,  and 
actually  deposited  upon  the  lot  on  which  such  dwelling  was  situated,  were 
exempt  from  seizure  on  attachment. 

[Buildings,  whether  used  for  business  or  rented,  upon  a  homestead,  are 
exempt.  Sever  v.  Lyons,  170  111.,  395,  398  (1897);  Stevens  v.  Hollings- 
worth,  74  111.,  202,  208  (1874).  Likewise,  a  fence.  Watterson  v.  Bonner 
Co.,  19  Mont.,  554,  556   (1897).] 

[A  chattel  mortgage  upon  fixtures  attached  to  a  homestead,  was  at- 
tempted to  be  foreclosed  in  a  court  which  had  no  jurisdiction  in  foreclosures 
of  real  estate  mortgages.  Ueld,  that,  the  fixtures  being  realty,  the  court 
had  no  jurisdiction;  and  the  fixtures  being  a  part  of  the  homestead,  were 
not  subject  to  conveyance  except  in  the  manner  provided  by  statute  for 
homesteads.     Gentry  v.  Bowser,  2  Tex.  Civ.  App.,  388   (1893).] 

[Machinery  mortgaged  as  chattels  and  attached  to  a  homestead  ])y  the 
mortgagor,  becomes  exempt  as  against  the  mortgagee  until  foreclosure. 
Low  v.  Tandy,  70  Tex.,  74.5,  749   (1888).] 

[A  landowner  can  not,  by  a  chattel  mortgage  of  machinery  attached  to 
his  homestead,  give  the  mortgagee  any  rights  as  against  the  wife  of  the 
mortgagor.     Phclan  v.  Boyd,   14  S.  W.,  290,  294   (Tex.,  1890).] 

[Machinery,  which  is  a  part  of  the  realty,  can  not  bo  claimed  by  the 
judgment  debtor  as  exempt  personal  property.  Bradley  v.  Eitchie,  12  Pa. 
Diat.,  658   (1903).] 

1  Place  v.  Fagg  (supra).  [See  Grant  v.  Wilson,  17  Up.  Can.  Q.  B.,  144, 
147.1 

[The  following  articles  can  not  be  attached  or  levied  upon  as  personal 
property:  A  leather  belt  for  transmitting  power  from  a  steam  engine,  the 
latter  being  real  estate,     Gidding  v.  Freedley,  128  Fed.,  355   (U.  S.  C.  C. 

539 


*354  THE  LAW  OF  FIXTURES.  [CIIAP.   X. 

A.,  Vt.,  1904).  Boards  in  use  as  a  permanent  floor  in  a  corn  barn. 
Haekett  v.  Amsdeu,  57  Vt.,  432,  43G  (1885),  See,  also,  Grimshawe  v. 
Burnham,  125  Up.  Can.,  Q.  B.,  147  (1865),  as  to  mill  stones  seized  for  taxes 
while  taken  from  their  place  for  the  purpose  of  being  levelled.] 

In  the  case  of  the  Congrogatioual  Society  of  Dubuque  v.  Fleming,  11 
Iowa,  533  (ISGl),  a  bell  had  been  used  in  the  belfry  of  an  old  church 
edifice.  A  new  building  was  erected  with  a  tower  for  the  bell,  and  the  old 
building  sold,  the  bell  being  reserved  from  the  sale.  The  bell  with  the 
framework  was  removed  from  the  old  building  and  placed  upon  the  lot 
belonging  to  the  society  where  the  new  church  was  erected  and  immediately 
in  front,  where  it  remained  for  about  a  year,  being  used  at  all  times  when 
required  for  church  purposes.  Defendant  having  an  execution  against  the 
society,  made  a  memorandum  of  levy  and  notified  one  of  the  trustees,  but 
did  not  take  actual  possession  of  the  bell.  About  two  weeks  afterwards 
when  it  was  advertised  for  sale,  the  church  authorities  raised  it  into  the 
tower,  but  before  it  was  fully  fastened  defendant  took  actual  possession 
thereof  and  was  about  to  remove  it  when  replevied.  Held,  that  the  bell 
never  ceased  to  be  a  fixture,  and  was  not  subject  to  levy  as  personal  prop- 
erty. "The  placing  it  in  this  position  and  this  use  indicate  unmistakably 
the  intention  of  the  society  to  affix  it  to  the  realty,  to  render  it  a  perma- 
nent accession  to  the  land;  to  appropriate  it  to  the  purpose  designed,  and 
to  divest  it  of  its  original  chattel  character.  And  though  it  be  admitted 
that  the  mere  intent  to  thus  convert  it  without  some  act,  would  not  be 
suflScient,  yet  the  act  and  use  indicate  the  intention  and  have  the  effect 
of  changing  the  character." 

See,  also,  Art.  468,  Civil  Code  La.;  Beard  v,  Duralde,  23  La.  Ann.,  284 
(1871). 

[An  engine  and  boiler  hauled  into  a  mill-yard  by  the  owner  with  the 
hoTia  fide  intention  of  attaching  them  to  the  mill,  and  they  are  necessary 
for  the  motive  power,  are  not  liable  to  the  levy  of  an  execution  as  personal 
property.  Patton  v.  Moore,  16  W.  Va.,  428,  439  (1880)  ;  likewise  as  to 
suitable  materials  deposited  upon  a  farm  for  the  purpose  and  with  the 
intention  of  building  necessary  fences  thereon.  Haekett  v.  Amsden,  57 
Vt.,  432,  436    (1885).] 

[A  granary,  removed  by  a  trespasser  from  a  homestead,  does  not  cease 
to  be  exempt,  and  a  judgment  obtained  against  the  trespasser  may  be 
treated  as  a  judgment  for  exempt  personal  property.  Wylie  v.  Grundysen, 
51  Minn.,  360,  362    (1892).] 

[A  constructive  severance  is  insufficient  to  render  an  article  subject  to 
levy  as  personalty.  Davis  v.  Eastham,  81  Ky.,  116,  117  (1883);  McNeil 
V.  Moore,  7  Tex.  Civ.  App.,  536,  539  (1894);  Carson  v.  Simpson,  25  Ont., 
385   (1894).] 

[Where  a  factory  was  destroyed  by  fire,  but  certain  machinery  was 
saved,  which,  with  building  material  upon  the  land,  was  sold  by  the  sheriff 
as  chattels,  and  were  treated  by  all  of  the  creditors  as  severed,  and,  later, 
the  land  being  sold  under  decree,  the  vendee  thereof  did  not  interfere  with 
the   buyers    at    the    execution    sale,    but    recognized    its    validity,    and    an 

540 


CHAP,    X.]  SALE    OF   FIXTURES    ON    EXECUTION.  *355 

*What  constitutes  a  constructive  annexation  has  been  [*355] 
already  considered  ^  and  need  not  here  be  repeated. 

With  reference  to  locomotive-engines,  cars,  and  other  rolling 
stock  of  railroad  companies,  the  better  opinion  is,  as  has  been 
already  observed,  that  they  are  mere  personal  chattels  and 
hence  subject  to  sale  on  fi.  fa.  as  such.^ 

Growing  grass,  trees  and  fruit,  not  being  the  annual  produc- 
tion of  labor  and  of  the  cultivation  of  the  earth,  are  also  parcel 
of  the  land  and  connot  be  seized  under  an  execution  as  chat- 
tels until  severed  from  the  land,^  though,  as  has  been  seen  in 

assignee  of  the  purchaser  of  the  land  also  sought  to  purchase  such  prop- 
erty previously  sold  as  chattels,  such  assignee,  after  receiving  a  deed,  will 
not  be  permitted  to  claim  such  chattels  as  fixtures.  Banfill  v.  Twyman, 
71  111.  App.,  253  (1896),  aflf'd  172  111.,  123  (1898).  See  Walton  v.  Jarvis, 
14  Up.  Can.  Q.  B.,  640;  13  Up.  Can.  Q.  B.,  616,  as  to  the  engine  and 
boiler  of  a  burned  saw-mill.] 

1  Ante,  p.  *33. 

2  See  Beardsley  v.  Ontario  Bank,  31  Barb.,  619  (1859);  Stevens  v.  Buf- 
falo &  New  York  City  E.  E.  Co.,  31  Barb.,  590  (1858)  ;  Hoyle  v.  Platts- 
burgh  &  Montreal  E.  E.  Co.,  54  N.  Y.,  114  (1873)  ;  s.  c,  51  Barb.,  45;  47 
Barb.,  104;  Eandall  v.  Elwell,  52  N.  Y.,  521  (1873);  s.  c,  11  Am.  Eep., 
747;  Chicago  &  N.  W.  Eailway  Co.  v.  Ft.  Howard,  21  Wis.,  44  (1866). 
[Boston,  C.  &  M.  E.  E.  v.  Gilmore,  37  N.  11.,  410,  421  (1858);  Williamson 
V.  New  Jersey  S.  E.  E.  Co.,  29  N.  J.  Eq.,  311  (1878);  see,  also,  Coe  v. 
Columbus,  P.  &  I.  E.  E.  Co.,  10  Ohio  St.,  372,  379  (1859).  Eailroad  cars 
are,  for  the  purpose  of  attachment,  personal  property.  Pub.  Sts.,  c.  161, 
§§  38,  39.  Hall  v.  Carney,  140  Mass.,  131,  132  (1885).  Coal,  stored  in 
sheds,  for  the  use  of  a  railroad,  can  be  levied  upon  as  personal  property. 
Chicago  &  N.  W.  E 'y  Co.  v.  Ellson,  113  Mich.,  30   (1897).] 

Sec  contra,  Farmers'  Loan  and  Trust  Co.  v.  Hendrickson,  25  Barb.,  484 
(1857) ;  Id.  V.  St.  Jo.,  etc.,  E'w'y  Co.,  3  Dill.  C.  C,  412  (1875) ;  Palmer  v. 
Forbes,  23  HI.,  312  (1860);  Hunt  v.  Bullock,  23  111.,  320  (1860);  Titus  v. 
Mabce,  25  111.,  257  (1861);  Titus  v.  Ginhcimer,  27  111.,  462  (1861);  see 
ante,  p.  *34,  et  seq.  [Elizabethtown  &  P.  E.  E.  Co.  v.  Elizabethtown,  75 
Ky.,  233,  238  (1876);  Grand  Trunk  E 'y  Co.  v.  Eastern  Townships'  Bank, 
16  Low.  Can.,  173,  175   (1865).] 

[A  distinction   is  made  between  rolliiifj-stock  of  an  ordinary  stoam   rail- 
way, which  may  be  hauled  to  any  part  of  the  country,  and  a  trolley-car  of 
an  electric  railway,   which   is  part   of   one   vast   machine.     Kirkpatrick   v 
Cornwall  Street  E 'y  Co.,  2  Ont.  Law,   113   (App.,   1901).] 

3  Rco  Bank  of  Lansinfjburffh  v.  Crary,  1  Barb.,  542  (1847);  Adams  v. 
Smith,  Brccso,  221  (1828);  Osborne  v.  Eabe,  67  111.,  108  (1873),  whore  the 
fi.  fa.  was  attempted  to  be  levied  on  nursery  trees.  [State  v.  Gemmill,  1 
Houston,  9,  16  (Del.,  1855);  Sparrow  v.  Pond,  49  Minn.,  412  (1892);  Late 

541 


*356  THE  LAW  OF  FIXTURES.  [CIIAP.   X. 

the  chapter  on  Eiiiblements,  it  is  otherwise  with  friictus  indus- 
truilcs. 

As  has  been  already  stated,  a  creditor  cannot  by  simply  levy- 
ing; his  execution  on  a  fixture,  or  by  levying;  on  the  land  and 
excepting  as  personal  property  a  building  or  otlier  fixture  there- 
on belonging  to  the  owner  of  the  land  on  which  it  is  situated, 
there  being  no  actual  severance,  change  the  character  of  his 
debtor's  estate  and  convert  a  part  of  it  into  personalty.^  Nor 
can  the  execution  debtor  by  parol  turn  out  as  chattels  for  pur- 
pose of  levy  growing  grass,  fruit  or  trees,  or  fixtures  annexed 
to  his  land,  nor  without  a  severance,  authorize  the  levy  of  execu- 
[*356]  tion  thereon  *as  chattels;  and,  if  attempted  to  be  done, 
the  levy  is  void.^ 

V.  McLean,  2  Nova  S.  Dec,  69  (1870).  But  see,  as  to  nursery  trees,  Bat- 
terman  v.  Albright,  122  N.  Y.,  484   (1890).] 

[Grass  is  not  open  to  attachment  although  fit  for  harvest.  Kogers  v. 
Elliott,  59  N.  H.,  201,  202   (1879).] 

[A  growing  crop  of  peaches  requiring  periodical  expense,  industry  and 
attention  in  its  yield  and  production,  are  fructus  industriales,  and  can  be 
levied  upon.  The  trees  are  fructus  naturales.  State  v.  Fowler,  88  Md., 
601,  609   (1898).] 

4  See  ante,  p.  *44,  and  notes.  See,  also,  Pemberton  v.  King,  2  Dev.,  376 
(1830).     [Off  V.  Finkelstein,  200  111.,  40   (1902).] 

[When  an  execution  creditor  levies  upon  a  fixture  and  takes  steps  to 
regain  possession  thereof  as  personal  property,  he  is  estopped  to  deny  that 
it  was  personal  property.     Jones  v.  Bull,  90  Tex.,  187,  194   (1896).] 

5  See  Bank  of  Lansingburgh  v.  Crary,  1  Barb.,  542  (1847)  ;  and  the  cases 
on  the  subject  of  the  Statute  of  Frauds  in  the  chapter  on  Emblements 
{ante,  p.  *268).  [See  Levinstein  v.  Born,  18  Phila.,  265,  266  (1886); 
but  see  Budden  &  Knight,  3  Que.  L.  E.,  273,  282  (1877).] 

The  doctrine  of  the  text  is  believed  to  be  the  better  opinion,  though  it 
seems  opposed  to  those  cases  collected  in  that  chapter  holding  the  sale  by 
parol  of  trees,  grass,  etc.,  under  certain  circumstances  not  to  be  within  the 
Statute.  See,  however,  Wetherby  v.  Foster,  5  Vt.,  136  (1832)  ;  Piper  v. 
Martin,  8  Penn.  St.,  206  (1848)  ;  Mitchell  v.  Freedley,  10  Penn.  St.,  198 
(1849).  In  the  last  named  case  it  was  ]ichl,  that  where  the  sheriff  with  the 
verbal  consent  of  the  owner  of  the  land  sold  certain  fixtures  (consisting  of 
machinery  for  spinning  cotton  yarn)  under  a  fi.  fa.  as  personalty,  the 
fixtures  remaining  annexed  after  the  sale,  and  the  purchaser  paid  the  price 
and  took  possession  thereof,  his  title  was  good  as  against  a  subsequent 
vendee  with  notice,  of  the  land  before  actual  severance  of  such  fixtures. 
The  court  in  rendering  their  judgment  seem  to  rely  principally  upon  the 
fact  that  by  the  consent  of  the  debtor  to  the  sale  as  chattels  on  fi.  fa.,  he 
had  ef-toppod  himself  from  asserting  title. 

542 


CB.AP.   X.]  SALE    OF    FIXTURES   ON    EXECUTION.  *356 

It  should  be  remarked  in  concluding  this  section,  that  machin- 
ery in  cotton  and  woolen-mills,  or  other  similar  manufactories, 
consisting  of  carding-maehines,  looms,  etc",  secured  to  the  floor 
by  cleats  nailed  around  the  feet,  or  by  screws  or  bolts  passing 
through  the  feet  into  the  floor,  or  in  other  similar  ways,  so  at- 
tached to  keep  them  steady  in  their  positions,  and  capable  of 
removal  without  injury  to  themselves  or  the  building,  and  which, 
as  has  been  seen  in  a  preceding  chapter,^  are  in  some  States 
held  to  be  mere  chattels;  and  also  other  articles  which  though 
more  or  less  attached  to  the  land  are  held  to  be  mere  chattels, 
are  in  those  States  also  held  to  be  subject  to  seizure  and  sale  on 
fi.  fa.  as  chattels,  notwithstanding  such  annexationJ 


6Cbap.  9,  p.  *294. 

7Teaff  V.  Hewitt,  1  Ohio  St.,  511  (1853)  ;  Murdock  v.  Gifford,  18  N.  Y,, 
28  (1858);  Sturgis  v.  Warren,  11  Vt.,  433  (1839);  Wetherby  v.  Foster,  5 
Vt.,  136  (1832),  potash-kettles  set  in  arches  in  the  usual  way;  Bartlett  v. 
■Wood,  32  Vt.,  372  (1859),  lathes,  drills,  punches,  and  saws  fastened  to  the 
building;  Fullam  v.  Stearns,  30  Vt.,  443  (1859),  machinery  in  a  bedstead- 
manufactory  and  grist-mill;  Hill  v.  Wentworth,  28  Vt.,  429  (1856),  ma- 
chinery in  a  paper-mill.  See,  also.  Gale  v.  Ward,  14  Mass.,  352  (1817)  ; 
Taffe  V.  Warnick,  3  Blackf.,  Ill  (1832);  Tobias  v.  Frances,  3  Vt.,  425 
(1830).  [Clore  v.  Lambert,  78  Ky.,  2S4  (1879),  an  engine  and  machinery 
attached  by  bolts  and  screws,  although  a  portion  of  the  floor  was  torn  up 
and  a  portion  of  the  wall  removed;  Lapene  v.  McCan,  28  La.  Ann.,  749 
(1876),  boilers  attached  with  brick  and  cement;  Scheifele  v.  Schmitz,  42 
N.  J.  Eq.,  700  (1887),  cumbersome  articles  in  a  brewery,  held  in  position 
Bolely  by  their  own  weight,  or  only  slightly  connected,  as  by  belting;  Pcnn 
Mut.  Ins.  Co.  V.  Semple,  38  N.  J.  Eq.,  575  (1884);  Vail  v.  Weaver,  132 
Pa.  St.,  363  (1890),  electric  light  machinery;  Carscallen  v.  Moodie,  15  Up. 
Can.  Q.  B.,  304;  Canada  Sav.  Co.  v.  Merchants'  Bank,  3  Man.,  285  (1886), 
heavy  planer  not  affixed;  see,  also.  Lea  v.  Shakespeare,  10  Mont.  Co.  (Pa.), 
171    (1894);   Ex  parte  Dickinson,  29  S.   C,  453    (1888).] 

See,  Iwiwever,  as  to  the  point  that  articles  so  annexed  are  fixtures,  the 
cases  cited  ante,  chap.  9,  p,  *275.  See,  also,  Kittrodgc  v.  Wood,  3  N.  II., 
506  (1826)  ;  Despatch  Lino  v.  Bellamy  Manuf 'g  Co.,  12  N.  II.,  233  (1841)  ; 
Baker  v.  Davis,  19  N.  H.,  334  (1849),  where  the  ease  of  Gale  v.  Ward  is 
questioned.     [MfDonald  v.  Weeks,  8  Gr.  Ch.,  297   (Ont.,  I860).] 

[A  ferry  boat,  buoys,  chain,  rope  and  all  other  fixtures  thereto  attached, 
are  sul»ject  to  levy  as  chatlels,  although  the  clinin  l)y  wliich  tlie  bout  is  run 
is  fastened  to  tho  boat  and  to  au  island.  Cowart  v.  Cowart,  71  Teun.,  57 
(1879).] 


543 


*357  THE  L.VW  OF  FIXTURES.  [CHAP.   X. 


[*357]  *II.    As  Against  a  Tenant. 

According:  to  the  early  authorities  it  seems  to  have  been  the 
general  rule  that  fixtures,  whether  annexed  by  the  owner  of 
the  soil  (>!•  by  a  tenant,  were  not  subject  to  levy  and  sale  on  fi.  fa. 
as  chattels.*  But  in  the  case  of  tenants,  since  the  decision  of 
Poole's  Case,**  the  rule  has  been  well  settled  that  during  the 
term  the  tenant's  trade  fixtures  removable  by  him  as  against 
his  landlord  may  be  levied  upon  and  sold  as  chattels  under  a 
f.  fa.  against  the  tenant,^ ^  and  may  be  removed  by  the  pur- 

8  See  Day  v.  Austin  (or  Bisbitch),  Owen,  70  (1595);  s.  c,  Cro.  Eliz., 
374;  Year  Books,  2\  Hen.  VII.,  27  (1506);  20  Hen.  VII.,  13  b  (1504). 

9  1  Salk.,  368   (1703);  s.  C,  Holt,  65. 

10  Pillow  V.  Love,  5  Hayw.,  109  (1818);  Lemar  v.  Miles,  4  Watts,  330 
(1835),  a  steam-engine;  Hey  v.  Bruner,  61  Penn.  St.,  87  (1869),  a  steam- 
engine  and  boiler;  Heffner  v.  Lewis,  73  Penn.  St.,  302  (1873),  iron  rails 
laid  on  a  track  in  a  tunnel  by  the  lessee  of  coal  lands;  Hallen  v.  Runder, 
1  Cr.  M.  &  R.,  275  (1834),  per  Parke  B.  See,  also,  Thropp's  Appeal,  70 
Penn.  St.,  395  (1872)  (cited  ante,  p.  *146)  ;  O'Donnell  v.  Hitchcock,  118 
Mass.,  401  (1875)  ;  ante,  p.  *15,  note.  [See,  ante,  p.  *92.  Freeman  v. 
Dawson,  110  U.  S.,  264,  270  (1883)  ;  Morey  v.  Hoyt,  62  Conn.,  542,  558 
(1893)  ;  Havens  v.  West  Side  Light  Co.,  17  N.  Y.  Supp.,  580,  582  (1892)  ; 
Pratt  V.  Keith,  5  Montg.  Co.  (Pa.),  113  (1889)  ;  Hughes  y.  Towers,  16  Up. 
Can.  C.  P.,  287  (1865)  ;  Antrim  v.  Dobbs  (1891),  30  L.  R.,  Ire.,  424,  rails 
of  a  tramway  over  land  to  reach  an  iron  mine  by  a  lessee  of  the  mining 
rights.     But  see  State  v.  Marshall,  4  Mo.  App.,  29,  33   (1877).] 

Perhaps  it  may  be  thought  that  in  strictness  it  ought  to  be  said  that  the 
fixtures  may  be  levied  upon,  severed  and  sold  as  chattels  on  a  f,.  fa.,  etc. 
In  Minshall  v.  Lloyd,  2  M.  &  W.,  450,  459  (1837),  per  Parke,  B.,  it  is  said: 
' '  The  right  of  a  tenant  is  only  to  remove  during  his  term  the  fixtures  he 
may  have  put  up,  and  so  make  them  cease  to  be  any  longer  fixtures.  That 
right  of  the  tenant  enables  the  sheriff  to  take  them  under  a  writ,  for  the 
benefit  of  the  tenant 's  creditor.  I  assent  to  the  doctrine  laid  down  in 
Coombs  V.  Beaumont  and  Boydell  v.  McMichael,  that  such  fixtures  are  not 
goods  and  chattels  within  the  bankrupt  law,  though  they  are  goods  and 
chattels  when  made  such  by  the  tenant 's  severance,  or  for  the  benefit  of 
execution  creditors."  In  Pemberton  v.  King,  3  Dev.,  376  (1830),  it  was 
held,  that  as  between  a  tenant  and  his  creditors  an  engine  actually  fixed  to 
and  in  the  soil  and  which  could  not  be  removed  without  tearing  down  the 
mason-work  and  house  which  covered  it,  were  until  severance  a  part  of  the 
realty;  and  that  although  the  tenant  might  have  a  right  to  sever  the  fixture 
from  the  freehold,  until  that  right  was  exercised  by  him  or  the  officer  the 
thing  was  merged  in  the  soil,  and  a  sale  of  it  as;  personalty  while  so 
annexed,  was  void.     It  must  be  sold  by  the  Qfficei:  in.  the  state  and  as  the 

544 


CHAP.   X.]  SALE   OF  FIXTURES   ON   EXECUTION.  *358 

*chaser  during  the  existence  of  the  term.  Indeed  it  may  [*358] 
be  regarded  as  a  general  rule,  that  all  tenant's  fixtures  which  are 
removable  as  against  the  landlord,  whether  erected  for  the 
purpose  of  trade  or  for  other  purposes,  are  in  favor  of  execu- 
tion creditors  of  the  tenant  to  be  considered  as  goods  and 
chattels.  But  where  the  tenant  has  no  right  to  disannex  fixtures, 
whether  by  reason  of  their  nature  or  the  manner  of  their  an- 
nexation or  on  account  of  his  having  renounced  the  right  of  re- 
moval by  contract  with  the  landlord,  the  sheriff  has  no  right 
to  take  them  in  execution  on  a  fi.  fa.,  his  right  being  only  com- 
mensurate with  the  right  of  the  lessee.^     In  like  manner,  where 

kind  of  property  it  is  at  the  time  of  sale.     The  act  of  levy  worked  no 
change  in  its  nature. 

This  distinction  seems,  however,  to  have  been  generally  disregarded,  and 
does  npt  appear  to  be  supported  by  any  subsequent  authorities.  The  real 
nature  of  the  contract  in  such  a  case  seems  to  be  a  sale  of  the  right  of 
removal  only.  See  the  cases  cited  in  ch.  9,  §  5,  In  re  Statute  of  Frauds; 
and  the  cases  cited  at  the  beginning  of  this  note. 

[Steers  v.  Daniel,  4  Fed.,  587,  598  (U.  S.  C.  C,  Tenn.,  1880),  related 
to  a  cotton-compress  weighing  many  tons,  fixed  to  the  soil  in  a  most 
substantial  manner,  with  deep  foundations.  Said  Hammond,  J.,  in  de- 
livering the  opinion  of  the  court:  "It  is  sometimes  loosely  said  in  the 
books  that  whatever  the  tenant  can  remove  must  be  levied  upon  and  sold 
as  personal  property.  This  may  be  so  as  to  mere  utensils  of  trade,  or 
trade  '  fixtures, '  which  are  portable,  and  not  seriously  injured  or  rendered 
useless  by  severance.  But  not  so  as  to  structures  like  this.  No  doubt  the 
press  is  valuable  when  severed,  and  can  be  placed  on  other  land,  but  the 
mere  cost  of  taking  down  and  putting  up  is  so  great,  that  its  value  stand- 
ing and  ready  for  work  is  far  greater,  and  it  cannot  be  that  the  debtor 
can  be  compelled  to  submit  to  a  mode  of  levy  and  sale  which  so  deteriorates 
his  property.  If  so,  it  could  be  severed  and  sold  on  an  execution  for  any 
small  amount."] 

1  Dumcrguo  v.  Rumsey,  2  H.  &  C,  777  (1863)  ;  s.  C,  12  W.  R.,  205;  33  L. 
J.,  Exch.,  88;  10  Jur.  (N.  S.),  155;  9  L.  T.  (N.  S.),  775;  Rex  v.  Topping, 
McClell.  &  Y.,  544  (1825);  Fisher  v.  Saflfer,  1  E.  D.  Smith,  611  (1S52). 
[Little  Valeria  Co.  v.  Lambert,  15  Colo.  App.,  445  (1900);  McAuliffo  v, 
Mann,  37  Mich.,  539,  541  (1877);  Donncwald  v.  Turner  Co.,  44  Mo.  App., 
350  (1891);  Friedlandcr  v.  Ryder,  30  Neb.,  783,  787  (1890);  Barker  v. 
Cincinnati  Brick  Co.,  4  Ohio  Dec,  270,  271  (1896);  Harris  v.  Kelly,  13 
Atl.,  523,  527  (Pa.  Super.,  1888);  Hammond  v.  Martin,  15  Tex.  Civ,  App., 
570  (1897);  Hughes  v.  Towers,  16  Up.  Can.  C.  P.,  287  (1865);  see,  also, 
Webster  Lnml)cr  Co.  v.  Keystone  Lumber  Co.,  51  W.  Va.,  545.] 

[The  right  to  attach  fixtures  is  lost  after  re-entry  for  non-payment  of 
rent.     Morey  v.  Hoyt,  62  Conn.,  542,  547  (1893).] 
3'^  545 


•358  THE  L.VW  OF  FiXTuuEs.  [chap.  X. 

by  the  atrroemcnt  of  the  parties  a  house  or  other  structure  erected 
upon  the  hind  of  another  is  to  be  the  personal  property  of  the 
party  erecting:  the  same,  who  accordingfly  has  the  right  of  re- 
moval, such  erection  may  be  levied  on  and  sold  on  a  fi.  fa.  ap:ainst 
the  owner  thereof  as  a  chattel.-     And  it  is  immaterial  that  the 

[An  agrecmeut  that,  in  a  certain  event,  the  landlord  shall  have  the 
privilege  of  taking  the  tenant's  fixtures  at  a  valuation,  does  not  jirevent 
their  being  taken  in  execution  when  that  event  has  not  occurred.  Seitzinger 
V.  Marsden,  2  Pennypacker,  4G3,  474   (Pa.  Supr.,  1882).] 

2  Foster  v.  Mabe,  4  Ala.,  402  (1842).  See,  also.  State  v.  Bonham,  18 
Ind.,  231  (1862).  See,  however,  dictum  of  Burrough,  J.,  in  Steward  v. 
Lombe,  1  B.  &  B.,  506  (1820);  s.  C,  4  Moore,  281.  [Broaddus  v.  Smith, 
121  Ala.,  335,  339  (1898);  Walton  v.  Wray,  54  Iowa,  531,  534  (1880); 
Hershberger  v.  Johnson,  37  Ore.,  109  (1900)  ;  Letchinan  Chetty  v.  Hassan 
Kudus,  4  Kyshe,  675,  676  (Straits  Set.,  1890)  ;  see,  also,  Morey  v.  Hoyt, 
62  Conn.,  542,  551  (1893);  Young  v.  Baxter,  55  Ind.,  188,  194  (1876); 
Tuttle  V.  Merchant's  Nat.  Bank,  19  Mont.,  11,  20  (1896)  ;  Dodge  v.  Bcattie, 
61  N.  H.,  101,  105  (1881);  Wick  v.  Bredin,  189  Pa.  St.,  83  (1899);  Ad- 
vance Coal  Co.  V.  Miller,  4  Pa.  Dist.,  352,  356  (1895)  ;  Haney  v.  Milliken, 
2  Tex.  Ct.  of  App.,  Civ.,  §  722  (1884)  ;  Dixon  v.  Mackey,  38  Can.  Law  J., 
653  (Man.,  1902).     But  see  Thomas  v.  Morasco,  5  Pa.  Dist.,  133   (1895).] 

[Kails  temporarily  laid  by  contractors  in  building  a  railroad,  and  which 
belong  to  them,  and  which  they  are  about  to  remove,  are  attachable  as 
personal  property.  Fifield  v.  Maine  Cent.  R.  E.  Co.,  62  Me.,  77,  80 
(1873).] 

[Where  a  fixture  was  left  upon  land  by  a  tenant  surrendering  possession, 
under  an  agreement  that  the  landlord  was  to  undertake  its  sale  to  a  person 
negotiating  for  the  land,  it  can  be  levied  upon  by  creditors  of  the  tenant. 
Torrey  v.  Burnett,  38  N.  J.  Law,  457   (1875),] 

[A  brick  house,  with  granite  and  brick  foundations,  well  built  into  the 
ground,  which  was  sold  independent  of  the  land,  is,  as  to  an  execution 
creditor,  a  "fixture"  and  a  personal  chattel  under  the  Bills  of  Sale  Ordi- 
nance.    Mootyah  Chetty  v.  Yacob,  4  Kyshe,  568,  569   (Straits  Set.,  1890).] 

[Machinery,  buildings,  fixtures,  etc.,  which,  by  agreement,  the  tenant 
had  a  right  to  remove  at  the  expiration  of  his  term,  were,  during  the 
term,  properly  sold  as  real  estate.  Hyatt  v.  Vincennes  Nat.  Bank,  113  U. 
S.,  408   (1884);   Dean  v.  Pyncheon,  3  Pinney,  17,  25   (Wis.,  1850).] 

[A  building  erected,  by  consent,  upon  the  land  of  another,  partakes  so 
much  of  the  nature  of  realty,  that  the  builder  can  not  exempt  it  as  personal 
property.    Lawson  v.  S.  T.  Barlow  Co.,  21  Ky.  L.  R.,  308,  309  (1899).] 

[The  road-bed  and  rails  of  a  street-railway  company  are  not  personal 
property.  Hart  v.  Benton-Bellefontaine  R'y  Co.,  7  Mo.  App.,  446  (1879). 
The  poles,  wires,  rails  and  rolling-stock  of  an  electric  railway  upon  a  city 
street,  are  not  subject  to  execution.     Kirkpatrick  v.  Cornwall  Street  R'y 

546 


CHAP.   X.]  SALE    OF   FIXTURES   ON    EXECUTION.  *359 

execution  was  jointly  against  both  the  owner  of  the  land  and 
the  owner  of  the  thing  annexed  thereto.^ 

The  rule  applies,  however,  only  to  those  cases  where  the 
tenant  or  other  person  who  has  made  annexations  to  the  land 
of  another,  has  a  power  of  removal  coupled  with  an  interest; 
and  hence  it  was  observed  by  Lord  Holt  in  Poole's  Case,  here- 
inbefore cited,  that  the  case  of  a  sheriff's  taking  the  tenant's 
fixtures  in  execution,  or  the  removal  thereof  by  the  tenant 
himself,  was  not  like  the  case  of  tenant  for  years  without  im- 
peachment of  waste;  for  in  that  case  the  sheriff  could  not  cut 
down  and  sell,  though  the  tenant  might,  and  the  reason  was 
*because  in  that  case  the  tenant  had  only  a  bare  power  [*359] 
without  an  interest,  while  in  the  other  cases  mentioned  he  had  an 
interest  as  well  as  a  power.^ 

With  reference  to  fixtures  which  are  the  property  of  the  land- 
lord, but  are  demised  to  a  tenant  with  the  premises  to  which 
they  are  annexed,  the  sheriff,  although  he  can  not  sell  the 
articles  as  chattels  separately  from  the  freehold,  may  yet  levy 
upon  and  convey  the  tenant's  interest  in  such  fixtures  what- 
soever its  nature.^  But  where  a  tenant  wrongfully  severs  fix- 
tures demised  to  him  with  the  land  to  which  they  are  annexed, 
such  fixtures  become  by  the  severance  the  absolute  property 
of  the  landlord,  and  the  tenant  has  no  right  to  their  use  dur- 
ing the  remainder  of  the  term;  and  hence  they  can  not  after 
such  severance,  be  seized  and  sold  on  a  f..  fa.  against  the  tenant.*' 
Where  a  sheriff  has  levied  an  execution  upon  a  lease  and  fix- 
tures attached  to  the  premises  thereby  demised,  and  is  author- 
ized to  sell  the  fixtures  separately  to  satisfy  the  writ,  it  is  his 
duty  so  to  do,  in  case  he  can  not  sell  them  together  with  the 

Co.,  2  Ont.  Law,  113  (App.,  1901).  But  see  Readfiekl  Telephone  Co.  v.  Cyr, 
95  Me.,  287  (1901),  as  to  telephone  poles  erected  in  a  public  street  under 
a  revocable  license,  and  the  location  of  which  was  subject  to  change.] 

3  State  V.  Bonham   (supra). 

4  Sec,  also,  Minshall  v.  Lloyd,  2  M.  &  W.,  450,  460   (1837),  per  Alder- 
son,  B. 

6  See  Went.  Off.  Ex.,  151 ;  Gordon  v.  Harper,  7  Term,  11,  12  (1796).    See 
ante,  ch.  1,  p.  49. 

6  Farrant  v.  Thompson,  5  B.  &  Aid.,  826  (1822)  ;  s.  C,  2  D.  &  R.,  1.     See 
ante,  Severance,  p,  "49. 

547 


•359  THE  LA-U-  OF  FIXTURES.  |  CHAP.    X. 

lease  to  one  pureliasor;"  and  if,  eonceivinj?  that  the  sale  of  the 
lease  by  his  broker  is  fraudulent,  he  refuses  to  assign  the  lease, 
and  returns  that  the  property  remains  on  his  hands  for  want 
of  buyers,  he  is  liable  in  an  action  for  a  false  return  for  the 
value  of  the  fixtures  which  ought  to  have  been  sold  separately; 
although  had  he  applied  to  the  court  for  time  to  make  his  return 
on  account  of  the  special  and  luiforeseen  circumstances  of  the 
case,  the  time  therefor  would  probably  have  been  enlarged.^ 

7  In  the  case  of  a  dwelling-house  erected  by  a  tenant  and  forming  a  part 
of  the  leasehold  estate,  not  being  naturally  divisible  from  the  lot,  it  is 
irregular  for  the  officer  to  levy  on  the  house  without  also  levying  on  the 
lease;  and  unexplained  such  a  levy  will  be  presumed  to  be  authorized. 
Conklin  v.  Foster,  57  III.,  104  (1870),  [See  Dean  v.  Pyncheon,  3  Pinney, 
17,  25   (Wis.,  1850).] 

[It  is  the  duty  of  the  sheriff  to  levy  upon  both  the  leasehold  and 
machinery,  and  sell  both  together,  in  precisely  the  condition  the  lessee 
has  placed  it;  otherwise  valuable  machinery  would  be  unnecessarily  im- 
paired by  severance,  and  so  would  the  leasehold.  It  is  immaterial  whether 
the  fixtures  be  real  estate  or  chattels.  Steers  v.  Daniel,  4  Fed.,  587,  597 
(U.  S.  C.  C,  Tenn.,  1880).] 

[Flouring-mill  machinery,  which  is  so  annexed  to  the  realty  as  to  be  a 
part  of  it,  passes  under  an  execution  sale  of  all  the  tenant's  right,  title 
and  interest  in  and  to  the  land,  although  the  tenant  had,  by  agreement,  a 
right  to  remove  it.     McNally  v.  Connolly,  70  Cal.,  3   (1886).] 

["Where  a  sheriff  levies  upon  a  lot  and  sells  the  same  as  real  estate,  the 
judgment  being  against  the  lessees  of  the  lot,  the  purchaser  acquires  no 
right  to  machinery  thereon  which  is  not  so  attached  as  to  be  a  part  of  the 
real  estate;  and  as  to  such  as  is  real  estate,  demand  for  delivery  or  pos- 
session must  be  made  before  the  defendant's  detention  becomes  wrongful. 
McNally  v.  Connolly,  9  Pac,  169   (Cal.,  1885).] 

8 Barnard  v.  Leigh,  1  Stark.,  43  (1815). 


548 


CHAPTER  XI.  [*360] 

OF  THE  EXEMPTION  OF  FIXTURES,  ETC.,  FROM  DIS- 
TRESS. 

The  rule  of  law  is  well  settled  that  things  adhering  to  the 
freehold  are  not  s^^bject  to  be  taken  under  a  distress;  and  this 
rule  applies  equally  to  all  fixtures,  whether  removable  or  irre- 
movable, whether  actually  or  only  constructively  annexed,  and 
whether  erected  for  the  purposes  of  trade  or  for  other  purposes.^ 

Chief  Baron  Gilbert  ^  thus  explains  the  reasons  for  this  ex- 
emption :  "A  distress  was  anciently  no  more  than  a  pledge  in 
the  hands  of  the  lord,  to  compel  the  tenant  to  pay  the  service, 
or  perform  the  duty  for  which  it  was  taken ;  and,  therefore,  at 
common  law  it  could  not  be  sold,  but  like  all  other  pawns  or 
pledges,  was  to  be  restored  to  the  owner  when  the  service  or  duty 
was  performed.   The  nature  of  contracting  by  pawns  or  pledges 

1  See  generally  Clarke  v.  Holford,  2  C.  &  K.,  540  (1848) ;  McGregor  v. 
High,  21  L.  T.  (N.  S.),  803  (1870);  Gorton  v.  Falkner,  4  Term,  565 
(1792);  Moore  v.  Drinkwater,  1  Fost.  &  Fin.,  134  (1858);  Niblett  v. 
Smith,  4  Term,  504  (1792);  1  Roll.  Abr.,  Dist.  H,  45;  Com.  Dig.,  Dist.  C; 
Year  Books,  20  Hen.  VII.,  13  b  (1504);  21  Hen.  VII.,  26  b  (1505),  tables 
dormant;  Co.  Lit.,  47b;  Vausse  v,  Russel,  2  McCord,  329  (1823),  a  house. 
[Gray  v.  McLennan,  3  Man.,  337,  346  (1886)  ;  see,  also.  First  Nat.  Bank  v. 
Adam,  138  111.,  483  (1891).] 

Charters  concerning  land  are  not  subject  to  be  distrained.  See  Bro.  Abr., 
Distress,  29;  Replevin,  34;  Brownlow,  168;  Hellawell  v.  Eastwood,  6  Exch., 
311  (1851).     [See,  ante,  p.  *230.] 

As  to  deer  in  a  park,  see  Davies  v.  Powell,  Willes,  46  (1737);  s.  C,  7 
Mod.,  249;  Cooke,  C.  P.,  221;  Com.  Dig.,  Distress,  C. 

Where  a  broker  under  a  warrant  from  a  landlord  authorizing  him  to  dis- 
train the  goods  and  chattels  of  the  tenant  for  rent,  seized  a  fixture  which 
was  afterwards  sold  and  the  proceeds  paid  to  the  landlord.  Held,  that  the 
receipt  of  the  proceeds  did  not  make  the  landlord  a  trespasser,  it  not  being 
ehown  that  he  was  aware  of  the  illegal  seizure.  Freeman  v.  Rosher,  18  L. 
J.   (Q.  B.),  340   (1849). 

2Gilb.  Dist.,  pp.  31,  38;  Turner  v.  Cameron,  L.  R.,  5  Q.  B.,  306,  312 
(1870), 

549 


*3G1  THE  LAW  OF  FIXTURES.  [CHAP.    XI. 

[*361]  is,  that  upon  payment  of  the  money  for  *security  where- 
of they  were  given,  the  pawn  or  pledge  ought  to  be  restored  to 
the  owner  in  the  same  plight  and  condition  it  was  delivered." 
******  "Whatever  is  part  of  the  freehold  cannot 
be  distrained ;  for  what  is  part  of  the  freehold  cannot  be  severed 
from  it  without  detriment  to  the  thing  itself  in  the  removal ;  ^ 
consequently,  that  cannot  be  a  pledge  which  cannot  be  restored 
in  statu  quo  to  the  owner.  Besides  what  is  fixed  to  the  freehold 
is  part  of  the  thing  demised;  and  the  nature  of  the  distress  is 
not  to  resume  part  of  the  thing  itself  for  the  rent,  but  only  the 
inducta  ct  illata  upon  the  soil  or  house."'* 

The  rule  at  the  common  law  also  extends  to  and  exempts 
from  the  levy  of  a  distress  even  fructus  industriales,  such  as 
growing  corn,  etc.^  But  as  between  landlord  and  tenant  the  rule 
in  this  respect  has  been  changed  by  the  Statute  11  Geo,  II,  c.  19, 
sec.  8,  which  authorized  the  levy  of  distress  for  arrears  of  rent 
upon  all  sorts  of  corn  and  grass,  hops,  roots,  fruits,  pulse,  or 
other  product  whatsoever  which  shall  be  grooving  on  any  part 
of  the  demised  estate.  It  is,  however,  held  that  the  word  * '  prod- 
uct" in  said  act  does  not  extend  to  trees  and  shrubs  growing 
in  a  nurseryman's  ground,  but  is  confined  to  products  of  a  sim- 
ilar nature  with  those  specified  in  that  section  to  all  which  the 
process  of  becoming  ripe,  of  being  cut,  gathered,  made  and  laid 
up  when  ripe,  is  incidental.^ 

3  See  Pitt  V.  Shew,  4  B.  &  Aid.,  207  (1821),  per  Abbot,  C.  J.;  Simpson 
V.  Hartopp,  Willes,  515  (1744),  per  Willes,  C.  J.:  "Things  annexed  to  the 
freehold  as  furnaces,  mill-stones,  chimney-pieces  and  the  like,  cannot  be 
distrained,  because  they  cannot  be  taken  away  without  doing  damage  to  the 
freehold,  which  the  law  will  not  allow." 

[Articles  are  not  distrainable  if  not  restorable  in  the  plight  in  which 
they  were  before,  although  removable  without  injury  to  the  freehold. 
Howell  V.  Listonville  Eink  Co.,  13  Ont.,  476,  492   (1886).] 

*  See  Hellawell  v.  Eastwood,  referred  to,  post  in  this  chapter. 

5  Pitt  V.  Shew,  4  B.  &  Aid.,  208  (1821) ;  1  Roll.  Abr.,  666;  2  Mod.,  61;  5 
Ed.  2,  pi.  135;  18  Ed.  3,  4;  2  Inst.,  82.     [See,  ante,  p.  *264.] 

6  Clark  V.  Gaskarth,  8  Taunt.,  431  (1818);  Clark  v.  Calvert,  Id.,  742 
(1819). 

As  to  the  distress  of  an  away-going  crop  left  in  accordance  with  custom 
in  the  barns  of  the  farm,  such  distress  being  made  more  than  six  months 
after  the  determination  of  the  lease,  see  Beavan  v.  Delahay,  1  H.  Bl.,  5 
(1788) ;  Lewis  v.  Harris,  Id.,  note  (1778). 

550 


CHAP.   XI.]  DISTRESS  OF  FIXTURES,   ETC.  *362 

As  already  remarked,  things  only  constructively  annexed  to 
the  freehold  are  exempt  from  being  taken  under  a  distress. 
Thus,  the  doors,  windows,  etc.,  of  a  house,  are  not  distrainable, 
*though  hung  upon  hooks  and  removable."^  And  in  [*362] 
Wystow's  Case  of  Gray's  Inn,^  it  was  held  that  a  mill-stone 
though  severed  from  the  mill  by  being  raised  to  be  picked,  is, 
notwithstanding,  still  parcel  of  the  mill,  and  so  cannot  be  dis- 
trained. But  a  mill-stone,  if  it  be  not  part  of  the  mill ;  ^  or  if 
a  man  has  two  mill-stones,  only  one  of  which  is  in  use  and  the 
other  of  which  lies  by,  not  used,  is  said  to  be  distrainable.^^  It 
may,  however,  be  stated  as  a  general  principle  that  fixtures 
disannexed  for  a  temporary  purpose  only,  as  for  the  purpose 
of  making  repairs,  do  not  become  chattels,  and  hence  are  not 
subject  to  be  taken  under  a  distress.  But  although  the  fixtures 
of  a  tenant  may  not  be  distrained  upon  while  annexed  to  the 
freehold,  or  while  temporarily  severed  for  repairs,  yet  when 
disannexed  by  the  tenant  or  his  agent,  not  temporarily  for  re- 
pairs, but  permanently  for  the  purpose  of  being  sold,  they  be- 
come chattels  and  liable  to  distress.^^ 

T  Said  in  Wystow's  Case  (infra). 

8  14  Hen.  8,  fo.  25  b,  pi.  6  (1522),  translated  in  a  note  to  Place  v.  Fagg, 
4  M.  &  R.,  280;  Finch,  book  2,  p.  135.  See,  also,  Bro.  Abr.,  Dist.,  pi.  23; 
11  Co.,  50;  Gilb.  Dist.,  49;  6  Mod.,  187. 

0  Finch,  book  2,  p.  135. 

10  Willes,  516,  citing  14  H.  8  (supra).  There  seems  to  have  been  among 
the  more  early  authorities  some  doubt  as  to  whether  a  smith  's  anvil  would 
be  exempt  from  distress.  In  Wystow's  Case  (supra)  the  reporter  adds  a 
quaere  "of  a  smith's  anvil,  for  it  seems  all  one,  if  it  be  that  which  he  uses 
in  his  trade  (ceo  sur  que  il  occujne),  notwithstanding  it  may  be  off  the 
stock."    See,  also,  Bro.  Abr.,  Distress,  pi.  23;  Ferard  Fi.xt.,  317. 

In  Gorton  v.  Falkner,  4  Term,  567  (1792),  Lord  Kenyon,  C.  J.,  said  that 
the  anvil  in  the  smith's  shop,  and  the  mill-stone  were  privileged,  because 
they  were  aflQxed  to  the  freehold,  and  that  a  temporary  removal  of  the  one 
or  the  other,  for  the  purpose  stated  in  the  argument,  was  not  sufficient  to 
destroy  that  privilege.  See,  also,  Bradby  on  Distress,  214;  Reynolds  v. 
Shuler,  5  Cow.,  323,  328  (1826),  per  Sutherland,  J.;  Com.  Dig.,  Distress,  C. 

In  .Tollio  &  Broad's  Case,  2  Rolle,  201,  202  (1620),  the  exomj.tion  of  a 
mill-stone  or  an  anvil  of  a  smith  is  put  upon  the  ground  that  being  tools, 
to  distrain  them  would  be  a  hindrance  to  his  trade. 

11  Reynolds  v.  Shuler,  5  Cow.,  323  (1826).  The  articles  in  question  in  this 
case  were  the  stills,  steam-tub,  cooler  and  worm  used  in  carrying  on  the 
distilling  business. 

551 


•363  THE  LAW  OF  FIXTURES.  [CHAP.   XI. 

As  to  what  particular  fixtures  have  beeu  decided  not  to  be 
subject  to  distress,  the  cases  are  not  numerous.  Besides  the 
instances  already  mentioned,  furnaces,  cauldrons  or  the  like, 
1*363]  *fixed  to  the  freehold,  cannot  be  distrained.'^  Neither 
can  tenant's  fixtures,  such  as  kitchen  ranges,  register  stoves,  cop- 
pers, and  grates,  annexed  to  the  freehold  in  the  ordinary  man- 
ner, and  which  the  tenant  might  sever  and  remove  during  his 
term.' 3  In  Turner  v.  Cameron  '^  the  facts  were  as  follows :  Three 
railways  were  connected  with  a  coal  mine,  one  being  within  the 
mine,  one  within  the  yard  used  for  the  purposes  of  the  colliery, 
and  a  third  extending  through  the  yard  and  along  the  waste  of 
a  manor  of  the  defendant  and  forming  a  junction  with  a  pub- 
lic railway.  These  railways  were  laid  down  by  the  lessees  of 
the  colliery  and  were  constructed  as  follows:  The  ground  was 
brought  to  a  dry  and  uniform  surface  by  spreading  ballast 
thereon.  Sleepers  were  then  laid  thereon  and  the  rails  laid  on 
and  secured  to  the  sleepers  by  dog-nails,  after  which  ballast 
was  packed  under  and  about  the  sleepers  to  keep  them  dry  and 
in  position.  In  order  to  remove  the  rails,  the  nails  were 
wrenched  out  or  the  heads  knocked  aside  with  a  bar  or  pick; 
and  to  remove  the  sleepers  the  ballast  about  them  was  partly 
removed  or  loosened  with  a  pick  and  the  sleepers  then  pried 
out,  leaving  holes  in  the  ballast.  The  rent  being  in  arrear  the 
lessor  distrained,  among  other  things,  the  three  railways,  remov- 
ing them  as  above  stated ;  and  it  was  held  by  the  Court  of 
Queen's  Bench  that  the  railways  were  fixtures  and  not  subject 
to  distress. 

In  the  case  of  Duck  v.  Braddyll,'^  in  referring  to  the  reason 

12  Co.  Lit.,  47  b;  Com.  Dig.,  Distress,  C. 

13  Darby  v.  Harris,  1  Q.  B.,  895  (1841).  See,  also,  Dalton  v.  Whittem,  3 
Q.  B.,  961   (1842);  Twigg  v.  Potts,  3  Tyrwh.,  969   (1834). 

Some  of  these  articles  would  now  doubtless  be  considered  mere  furniture 
and  not  fixtures  in  any  sense  of  the  word.  The  case  does  not  state  the 
manner  of  the  annexation.     See  ante,  p.  *298. 

[A  temporary  floor  in  a  roller  skating  rink  can  not  be  distrained.  Howell 
V,  Listonville  Eink  Co.,  13  Ont.,  476,  492   (1886).] 

i*L.  E.,  5  Q.  B.,  306  (1870)  ;  s.  C,  39  L.  J.,  Q.  B.,  125;  9  B.  &  B.,  931; 
22  L.  T.  (N.  S.),  525;  18  W.  E.,  544;  24  L.  T.  (N.  S.),  500,  on  a  question 
as  to  costs. 

15  McClel.,  217,  231   (1824) ;  s.  c,  13  Price,  455. 

552 


CHAP.   XI.]  DISTRESS   OF   PIXTUEES,    ETC.  *364 

of  the  rule  already  stated,  that  at  common  law,  a  distress  being 
no  more  than  a  pledge,  nothing  can  be  the  subject  of  it  which 
can  not  be  restored  in  the  same  condition  in  which  it  was  taken 
away,  it  was  insisted  that  certain  machines  erected  *in  [*364] 
a  factory  by  a  tenant  and  fastened  to  the  floor  by  bolts  and 
screws  only,  were  distrainable,  because  they  might  be  removed 
and  replaced  by  means  of  the  bolts  and  screws  without  sustain- 
ing any  injury  whatever.  On  the  other  hand  it  Avas  insisted, 
that  the  right  to  distrain  did  not  extend  to  such  machines,  be- 
cause it  was  a  general  rule  that  chattels  fixed  to  the  freehold 
could  not  be  distrained;  and  it  was  not  to  be  confined  to  those 
cases  only  where  the  property  could  not  be  restored  in  statu 
quo;  and  the  instance  of  the  mill-stone  was  cited  in  support  of 
this  position.  The  point  was  not,  however,  passed  upon  by  the 
court  in  that  case.  In  Darby  v.  Harris,  already  referred  to,  the 
strict  rule,  as  laid  down  by  the  early  authorities  seems  to  have 
been  followed,  though  the  true  ground  of  the  rule  on  this  sub- 
ject was  declared  to  be  that  the  fixtures  cannot  be  restored  in 
their  original  plight.  The  subject  again  came  under  considera- 
tion in  the  case  of  Hellawell  v.  Eastwood,!"  where  it  was  held, 
that  cotton-spinning-machines  called  "mules,"  set  up  by  a  tenant 
on  the  demised  premises,  some  of  which  were  fixed  by  means  of 
screws  to  the  wooden  floor,  and  some  by  screws  which  had  been 
sunk  into  holes  in  the  stone  flooring,  and  secured  by  molten  lead 
poured  into  them,  the  object  of  the  annexation  being  not  to  im- 
prove the  inheritance,  but  merely  to  render  the  machines  steadier 
and  more  capable  of  convenient  use  as  chattels,  Avere  not  a  part 
of  the  freehold  and  were  distrainable  for  rent.  In  this  case 
Parke,  B.,  after  referring  to  the  observations  of  Lord  Chief 
Baron  Gilbert,  already  quoted,  said:  "We  have,  therefore,  to 
decide  whether  these  machines  fall  within  either  of  those  cate- 
gories, for  otherwise  they  are  not  protected.  They  do  not  fall 
within  the  latter;  for  upon  being  taken  to  the  pound,  they  might 
be  brought  back  without  damage  to  themselves.  They  are  not 
of  a  perishable  nature,  and  would  not  sufl'er  by  a  careful  re- 
moval. If  it  were  necessary  to  take  some  to  pieces,  in  order  to 
remove  them,  that  circumstance  would  make  no  di (Terence;  for 
that  might  occur  with  chattels  with  respect  to  which  there  is  no 

"6  Exch.,  295   (1851)  ;  s.  c,  20  L.  J.  Exch.,  154. 

5.33 


•365  THE  LAW  OF  FIXTURES.  [CUAP.   XI. 

question,  as  for  instance,  post-beds;  they  could  not  be  carried 
[*365]  *to  the  pound  without  being  first  taken  to  pieces;  and 
the  distrainee  would  have  no  reason  to  complain  that  they  were 
restored  to  him  in  the  disjointed  state  at  the  pound,  where  he 
must  attend  to  receive  them.  It  would  save  him  the  trouble 
of  taking  the  bedsteads  to  pieces  again,  in  order  to  replace  them, 
if  they  had  been  re^ored  entire.  Nor  does  it  make  any  differ- 
ence, that  the  distrainee  would  be  obliged  to  incur  the  expense 
of  refixing  the  machinery.  Precisely  the  same  objections  might 
be  made  to  the  distress  of  any  article  which  it  required  expense 
to  carry  back  from  the  pound  and  to  restore  to  its  former  posi- 
tion. The  distrainee,  at  common  law,  must  be  at  the  trouble 
and  expense  of  taking  back  his  goods  from  the  pound.  This 
practical  inconvenience  is  now  obviated  by  the  power  of  im- 
pounding on  the  premises. 

"The  only  question,  therefore,  is,  whether  the  machines  when 
fixed  were  parcel  of  the  freehold ;  and  this  is  a  question  of  fact, 
depending  on  the  circumstances  of  each  case,  and  principally 
on  two  considerations :  first,  the  mode  of  annexation  to  the  soil 
or  fabric  of  the  house,  and  the  extent  to  which  it  is  united  to 
them,  whether  it  can  easily  be  removed,  integre,  salve,  et  com- 
mode, or  not,  without  injury  to  itself  or  the  fabric  of  the  build- 
ing; secondly,  on  the  object  and  purpose  of  the  annexation, 
whether  it  was  for  the  permanent  and  substantial  improvement 
of  the  dwelling,  in  the  language  of  the  Civil  Law,  perpetui  usus 
causa,  or  in  that  of  the  Year  Book,  pur  un  profit  del,  enherit- 
ance,^"^  or  merely  for  a  temporary  purpose,  or  the  more  complete 
enjoyment  and  use  of  it  as  a  chattel."  Applying  the  law  thus 
stated  the  conclusion  was  arrived  at  that  the  articles  in  question 
never  ceased  to  have  the  character  of  movable  chattels,  and  were 
therefore  liable  to  distress. 

This  case,  it  will  be  observed,  recognizes  to  its  full  extent  the 
rule  of  the  common  law  that  things  fixed  to  the  freehold,  and 
which  have  become  a  part  of  it,  cannot  be  distrained ;  and  also 
places  the  rule  upon  the  two  grounds  assigned  by  Chief  Baron 
Gilbert.  The  rule  of  law  laid  down  in  the  case  as  to  the  tests 
by  which  to  determine  whether  the  machines  in  question  were 
[*366]  fixtures,  has  with  some  qualifications  been  approved  *in 

IT  20  Hen.  VII.,  13. 

554 


CHAP.   XI.]  DISTRESS  OP  FIXTURES,   ETC.  *366 

subsequent  cases,  and  does  not,  when  taken  with  such  qualifica- 
tions, difi:'er  essentially  from  that  laid  down  in  a  previous  chap- 
ter.^ ^    But  the  correctness  of  the  application  of  the  law  to  the 

18  In  Holland  v.  Hodgson,  L.  E.,  7  C.  P.,  328,  337  (1872),  Blackburn,  J., 
in  referring  to  this  case,  said:  "The  words  'merely  for  a  temporary  pur- 
pose' must  be  understood  as  applying  to  such  a  case  as  we  have  supposed, 
of  the  anchor  dropped  for  the  temporary  purpose  of  mooring  the  ship,  or 
the  instance  immediately  afterwards  given  by  Parke,  B.,  of  the  carpet 
tacked  to  the  floor  for  the  purpose  of  keeping  it  stretched  whilst  it  was 
there  used,  and  not  to  a  case  such  as  that  of  a  tenant  who,  for  example, 
afl^es  a  shop-counter  for  the  purpose  (in  one  sense  temporary)  of  more 
effectually  enjoying  the  shop  whilst  he  continues  to  sell  his  wares  there. 
Subject  to  this  observation  we  think  that  the  passage  in  the  judgment  in 
Hellawell  v.  Eastwood  does  state  the  true  principles,  though  it  may  be 
questioned  if  they  were  in  that  case  correctly  applied  to  the  facts. ' '  See, 
also,  the  observations  in  this  case  as  to  the  expression  relating  to  the  im- 
provement of  the  inheritance  and  more  convenient  use  of  the  articles  as 
chattels;  also  Turner  v.  Cameron   (infra). 

The  dictum  in  said  case  of  Hellawell  v.  Eastwood,  that  such  articles 
would  not  pass  by  a  conveyance  or  demise  of  the  mill  may  be  considered 
as  overruled.  See  Holland  v.  Hodgson  (supra),  and  the  cases  there  cited. 
See  the  case  commented  upon  generally  in  Longbottom  v.  Berry,  L.  K.,  5 
Q.  B.,  123,  137  (1869)  ;  Mather  v.  Fraser,  2  Kay  &  John.,  536,  549  (1856)  ; 
Climie  v.  Wood,  L.  E.,  3  Exch.,  257,  261  (1868)  ;  s.  c,  4  Id.,  328;  Eegina 
V.  Lee,  L.  E.,  1  Q.  B.,  244,  254  (1866)  ;  Barnett  v.  Lucas,  5  Ir.  Com.  Law, 
145  (1870)  ;  Turner  v.  Cameron,  L.  E.,  5  Q.  B.,  306,  312,  313   (1870). 

[A  spinning-mule,  eleven  by  ninety,  having  over  four  hundred  spindles, 
and  screwed  to  the  floor  of  a  mill,  is  subject  to  distress.  "Fixtures  slightly 
attached,  which  the  tenant  may  remove  at  his  pleasure  during  the  term, 
and  which  may  be  removed  without  destroying  their  character  or  injuring 
them,  may  be  distrained.  They  can  be  restored  in  the  same  plight."  Fur- 
bush  V.  Chappell,  105  Pa.  St.,  187,  190  (1884).] 

[Certain  machines  were  distrained  and  taken  from  an  ironworks.  One 
was  attached  overhead;  some  were  fastened  by  bolts  through  the  floor,  the 
flooring  being  taken  up,  and  the  bolts  holding  the  machines  in  place  were 
let  through  cross  sleepers  of  wood  sunk  in  the  ground  below;  others  were 
similarly  fastened,  screws  being  used  instead  of  bolts.  All  the  machines 
had  belts  which  ran  through  pulleys  connected  with  shafting,  which  was 
fastened  to  the  framework  overhead.  Held,  that  they  were  removable,  and 
were  removed  without  injury  either  to  themselves  or  to  the  fabric  of  the 
building,  and  that  the  object  of  the  annexation  was  to  keep  them  steady; 
and  that  they  were  not  fixtures.  Cartwright  v.  Widemann,  9  Hawaii,  685, 
689   (1892).] 

f  A  planing  machine  resting  by  its  own  weight  and  connected  only  by 
belting  is  a  chattel  and  distrainable  for  unpaid  taxes.  Hope  v.  Cumming, 
10  Up.  Can.  C.  P.,  118,  121.] 

555 


•366  THE  LAW   OP   FIXTURES,  [CHAP.    XI. 

facts  of  the  case  seems  open  to  considerable  doubt/ ^  though  it 
has  been  approved  in  a  subsequent  case.-" 

Whatever  may  be  thought  as  to  the  correctness  of  the  de- 
cision in  the  case  above  mentioned,  the  common  law  privilege  of 
exemption  of  fixtures  from  distress  may  probably  be  waived  by 
the  contract  of  the  parties  in  interest ;  and  it  has  been  held  that 
machinery,  let  with  a  manufactory  (the  property  in  such  ma- 
chineiy  being  transferred  to  the  tenant  in  consideration  of 
money),  with  a  power  to  distrain  on  such  machinery  reserved 
by  the  lease, — is  distrainable.  And  if  taken  and  sold  on  execu- 
tion by  the  sheriff,  he  must  pay  to  the  landlord  out  of  the  pro- 
ceeds the  unsatisfied  arrears  of  rent  due  for  one  year  or  less 
according  to  the  Statute  8  Anne.,  ch.  14.2i 

19  See  Holland  v.  Hodgson,  supra,  in  note. 

20  See  Turner  v.  Cameron,  L.  R.,  5  Q.  B.,  306,  312,  313   (1870). 

21  Duck  V.  Braddyll,  McClel.,  217   (1824) ;  s.  c,  13  Price,  455. 


556 


CHAPTER  XII.  [*367] 

OF  RIGHTS  AND  LIABILITIES  RESPECTING  LAND  AS 

INCREASED  IN  VALUE  BY  THE  ANNEXATION 

OF  PERSONAL  CHATTELS. 

I,      T.VXATION  IN   THE  UNITED   STATES. 

The  subject  of  taxation,  as  relating  to  fixtures,  depends  so 
much  upon  the  character  of  the  statutes  under  which  the  power 
is  exercised,  which  vary  according  to  the  policy  of  the  different 
States,  that  little  more  can  be  done  in  considering  the  subject 
than  to  call  attention  in  the  notes  to  the  few  cases  wherein  the 
subject  has  been  discussed. 

"With  respect  to  the  subject-matter  of  taxation  as  being  realty 
or  personalty,  the  terms  of  the  statutes  generally  have  a  con- 
trolling influence  ;i  but  where  the  subject  is  not  controlled  by 
statutory  definitions  of  the  terms  "realty"  and  "personalty," 
or  other  express  terms,  no  reason  is  perceived  why  the  ordinary 
rules  for  determining  the  question  already  considered,  should 
not  be  applicable  to  the  solution  of  the  question. 2 

1  See  Cooley  on  Taxation,  275. 

2  Where  the  provisions  of  the  charter  under  which  the  right  of  way 
ground  of  a  railroad  corporation  was  taxable,  enacted  that  "an  annual  tax 
for  State  purposes  shall  be  assessed  by  the  Auditor  upon  all  the  property 
and  assets  of  every  name,  kind  and  description  belonging  to  said  corpora- 
tion, ' '  it  was  held,  that  grain  ware-houses  built  by  private  individuals  on 
said  land  for  their  own  benefit,  and  confessedly  belonging  to  and  removable 
by  them  as  pcrsoniil  property,  did  not  come  within  the  terms  of  such 
statute  as  property  "belonging"  to  the  corporation;  and  hence  did  not 
come  within  the  exemption  from  taxation  of  the  company's  roadway  upon 
which  they  were  situated,  and  hence  were  taxable  as  the  personal  property 
of  the  persons  to  whom  they  belonged.  Gilkerson  v.  Brown,  61  111.,  486 
(1871). 

[Elevators,  owned  by  third  parties,  upon  the  right  of  way  of  a  railroad 
company,  are,  under  §  1510,  G.  S.,  1894,  personal  property  for  the  purpose 
of  taxation.     State  v.  Red  River  Co.,  69  Minn.,  131,  13.3  (1897),  overruling 

557 


•367  THE  LAW   OF   FIXTURES.  [CIIAP.    XII. 

Minneapolis  &  N.  Elevator  Co.  v.  Clay  County,  60  Minn.,  522,  523  (1895).] 

[An  exemption  of  the  right  of  way  of  a  railroad  company  covers  the 
land  and  whatever  is  ortx-tod  upon  it  necessary  for  the  construction  and 
operation  of  a  railroad.  New  ^Mexico  v.  United  States  Trust  Co.,  172  U.  S., 
171  (1898);  174  U.  S.,  545,  547  (1899);  Northern  Pac.  E.  R.  v.  Carland, 
5  Mont.,  146  (1884);  U.  S.  Trust  Co.  v.  Territory,  8  N.  Hex.,  673,  693 
(1896);  contra.  Territory  v.  Delinquent  Tax  List,  3  Ariz.,  117,  121 
(1889);  Atlantic  &  P.  K.  E,  Co.  v.  Lesueur,  2  Ariz.,  428  (1888).] 

[In  Commissioners  of  Chase  County  v.  Shipman,  14  Kan.,  532,  537 
(1875),  it  was  held  that  a  grist  mill  and  saw  mill  erected  upon  land  of 
the  United  States  which  was  occupied  as  a  homestead,  were  exempt  from 
taxation  if  the  land  was  exempt;  and  that  calling  them  personal  property 
did  not  make  them  so;  but  in  Crocker  v.  Donovan,  1  Okla.,  165^  178  (1892), 
it  was  held  that  improvements  made  by  a  homestead  entryman  were  taxable 
as  personal  property.] 

[An  engine  and  boiler  firmly  affixed  to  the  rock  by  bolts  leaded  down, 
and  built  in  to  a  brick  foundation,  are  exempt  as  part  of  a  mining  claim, 
although  exemptions  from  taxation  are  strictly  construed;  but  a  pipe  line 
conducting  water  to  the  mine  is  not  exempt.  Mammoth  Mining  Co.  v. 
Juab  County,  10  Utah,  232,  236  (1894).  Likewise,  a  building  erected  on 
the  surface,  containing  the  machinery  for  crushing  ore,  is  exempt,  where 
the  land  was  leased  for  mining,  and  "mines"  are,  by  statute,  exempt. 
Mayor  of  Eaglehawk  v.  Lady  Barkly  Co.,  7  Aust.  Law  T.,  72  (Vict., 
1885).] 

[Where  the  charter  of  a  cemetery  company  exempts  its  land  from  taxa- 
tion, such  exemption  extends  to  gate-houses  and  all  permanent  improve- 
ments as  a  part  of  the  realty;  and  a  statute  requiring  assessors  to  estimate 
the  value  of  land,  and  separately  value  the  improvements  thereon,  does 
not  convert  the  improvements  into  personalty,  but  only  points  out  the 
mode  of  ascertaining  the  aggregate  value.  Appeal  Tax  Ct.  v.  Bait.  Co., 
50  Md.,  432   (1878);  see  Andrews  v.  Auditor,  28  Gratt.,  115   (Va.,  1877).] 

[A  building  erected  by  a  lessee  upon  land  which  is  exempt  from  taxation, 
is  not  exempt.  San  Francisco  v.  McGinn,  67  Cal.,  110  (1885)  ;  Eussell 
V.  New  Haven,  51  Conn.,  259,  261  (1883),  practically  overruling  Osborne 
V.  Humphrey,  7  Conn.,  335,  340  (1829)  ;  Parker  v.  Eedfield,  10  Conn.,  490 
(1835);  Burbank  v.  Board  of  Assessors,  52  La.  Ann.,  1506  (1900);  New 
Orleans  v.  Buss,  27  La.  Ann.,  413  (1875)  ;  Lee  v.  New  Orleans,  28  La. 
Ann.,  426,  427  (1876);  Philadelphia,  W.  &  B.  E.  R.  Co.  v.  Appeal  Tax 
Ct.,  50  Md.,  397,  413  (1878);  State  v.  Mission  Free  School,  162  Mo.,  332 
(1901);  People  v.  Board  of  Assessors,  93  N,  Y.,  308  (1883).  In  these 
cases  the  building  was,  during  the  term  at  least,  the  property  of  the  lessee. 
If  the  building  had  been  the  property  of  the  lessor,  it  is  indicated  that  it 
would  have  been  exempt  as  part  of  the  land.] 

[A  bridge,  although  resting  upon  a  public  highway  or  over  a  navigable 
river,  is  taxable  as  real  estate.  Alexandria  Canal  E.  E.  &  Bridge  Co.  v. 
District  of  Columbia,  12  D.  C,  217,  227  (1881);  Kittery  v.  Portsmouth 
Bridge,  78  Me.,  93,  97  (1886) ;  Hudson  Bridge  Co.  v.  Patterson,  74  N.  Y., 

558 


CHAP.   Xn.]  TAXATION.  *367 

365,  370  (1878).  A  bridge  resting  upon  stone  piers  belonging  to  the 
county,  is  not,  -while  in  the  possession  of  a  lessee,  exempt.  Luttrell  v. 
Knox  County,  89  Tenn.,  253   (1890).] 

[A  pier  built  upon  city  lands  is  properly  taxed  as  real  estate.  Smith 
V.  Mayor,  68  N.  Y.,  552  (1877)  ;  so,  of  a  wharf  upon  a  public  street. 
People  V.  Commissioners  of  Taxes,  17  Supr.  Ct.  (10  Hun),  207  (N.  Y., 
1877).  But  in  Percival  v.  Thurston  County,  14  Wash.,  586,  a  wharf  on 
state  land  was,  under  the  statute,  considered  personal  property,] 

[A  boom,  consisting  of  permanent  piers  across  a  river,  and  logs  fas- 
tened to  the  piers  and  shores  by  iron  chains,  is  taxable  as  real  estate. 
Hall  V.  Benton,  69  Me.,  346,  347   (1879).] 

[An  exemption  of  workshops  includes  all  machinery  and  implements 
necessary  to  their  management.  Eichmond  &  Danville  R.  R.  Co.  v.  Ala- 
mance, 84  N.  C,  504  (1881).  Spinning  machinery,  while  attached  to  a 
building,  is  exempt  as  an  improvement  on  land,  although  the  party  attach- 
ing it  has  the  right  to  remove  it.  Ex  parte  Makepeace,  31  N.  C,  91 
(1848).] 

[Conversely,  the  exemption  of  a  building  impliedly  carries  with  it  such 
grounds  as  may  be  reasonably  necessary  for  its  use.  Gerke  v.  Pureell,  25 
Ohio  St.,  229,  248  (1874)  ;  but  see  Lefevre  v.  Detroit,  2  Mich.,  586  (1853), 
that  an  exemption  of  a  house  of  public  worship  does  not  extend  to  the 
ground  upon  which  it  stands.] 

[Fruit  trees  are  not  exempt  from  taxation  as  "growing  crops."  Cottle 
V.  Spitzer,  65  Cal.,  456  (1884);  nor  is  alfalfa;  neither  is  it  taxable  as  an 
"improvement,"  nor  can  it  be  taxed  as  personal  property  until  severed. 
Miller  v.  County  of  Kern,  137  Cal.,  516  (1902).] 

Gas-pipes  belonging  to  a  gas  company,  laid  in  the  streets  of  a  city  by 
permission  of  the  corporate  authorities,  do  not  become  the  property  of  the 
city  or  a  part  of  the  realty,  but  remain  the  personal  property  of  the  com- 
pany, and  are  taxable  as  against  the  company,  as  a  part  of  a  "manufac- 
turing establishment."  Memphis  Gas-light  Co.  v.  The  State,  6  Cold.,  310 
(1869).  See,  however.  Providence  Gas  Co.  v.  Thurber,  2  R.  T.,  15  (1851), 
where  the  gas-pipes  were  considered  fixtures  and  taxable  as  real  estate. 
See,  also.  Commonwealth  v.  Lowell  Gas-light  Co.,  12  Allen,  75  (1866), 
where  the  term  "machinery"  was  considered  to  include  gas-pipes  laid 
down  in  the  streets,  and  the  gas-meters. 

[Gas-pipes,  water-mains,  and  hydrants  in  the  public  streets,  are  realty 
for  the  purpose  of  taxation.  Colorado  Fuel  Co.  v.  Pueblo  Water  Co.,  11 
Colo.  App.,  352,  357  (1898)  ;  Capital  City  Gas  Co.  v.  Charter  Oak  Ins.  Co., 
51  Iowa,  31,  35  (1879);  Be  Des  Moines  Water  Co.,  48  Iowa,  324,  331 
(1878);  Paris  v.  Norway  Water  Co.,  85  Me.,  330,  335  (1893);  People 
v.  DeWitt,  59  App.  Div.,  493,  494  (1901),  afT'd  167  N.  Y.,  575,  576 
(1901);  People  v.  Martin,  55  Supr.  Ct.  (48  Ilun),  19.3,  194  (N.  Y.,  1888); 
Styles  V.  Newport,  56  Atl.,  662,  667  (Vt.,  1904);  Will-vd  v.  Pike,  59  Vt., 
202,  223  (1886)  ;  Consumers  Gas  Co.  v.  Toronto,  27  Can.,  453  (1897),  aff'g 
23  Ont.  App.,  551  (1896),  and  26  Ont.,  722  (1895);  Shorbrnnkc  Gas  Co.  v. 
Sherbrookc,  15  Leg.  News   (Montreal),  22,  30   (Circ.  Ct.,  Que.,  1891);  Re 

550 


*367  THE  LAW  OF  FIXTURES.  [CHAP,   XH. 

Hamilton  Gas  Co.,  32  Can.  Law  J.,  366  (Ass't  Ct.,  Ont.,  1895);  see,  also, 
.Monroe  Water  Co.  v.  Frcnchtown,  OS  ]\Ii<"h.,  431  (1894).  This  matter  is 
very  frequently  statutory,  llcrkiiner  Light  Co.  v.  Johnson,  37  App.  Div., 
257  (N.  Y.,  1899).  The  following  cases  hold  that  water-pipes,  hydrants, 
gas-mains,  and  electric  wires  are  assessable  as  personal  property.  Shelby- 
villo  Water  Co.  v.  People,  140  111.,  545  (1892);  People  v.  Board  of  Asses- 
sors, 39  N.  Y.,  81,  87  (1868);  Saint  Croix  Water  Co.  v.  Milltown,  31  N, 
Brunsw.,  452  (1892);  Be  St.  Catharines  Light  Co.,  30  Can.  Law  J.,  205 
(Co.  Ct.,  Ont.,  1894).  These,  also,  are  made  so  by  legislation,  including 
buildings.     State  v.  Wharton,  115  Wis.,  457,  462   (1902).] 

[Gas-meters  placed  on  the  premises  of  consumers,  are  personalty.  Re 
Hamilton  Gas  Co.,  32  Can.  Law  J.,  366  (Ass't  Ct.,  Ont.,  1895);  but  a 
reservoir  becomes  a  part  of  the  land.  Saint  Croix  Water  Co.  v.  Milltown, 
31  N.  Brunsw.,  452   (1892).] 

[An  underground  pipe  line  for  conveying  crude  petroleum  from  one  state 
to  another,  is  real  estate,  although  the  surface  is  owned  and  cultivated  by 
others.  Tide  W^ater  Pipe  Line  Co.  v.  Berry,  53  N.  J.  Law,  212  (1890); 
State  v.  Berry,  52  N.  J.  Law,  308   (18.90).] 

[Where  mains,  standpipes,  and  hydrants  are  considered  realty,  the  ques- 
tion arises  whether  they  are  to  be  assessed  as  a  part  of  the  main  works,  or 
should  they  be  assessed  where  situated.  In  Iowa  it  is  held  that  they  are 
a  part  of  the  main  works,  although  the  latter  are  located  upon  leased 
ground,  the  lessees  having  the  right  to  remove  all  of  their  property  at  the 
end  of  the  term,  the  term  being  long  and  the  buildings  substantial.  Oska- 
loosa  Water  Co.  v.  Board  of  Equalization,  84  Iowa,  407  (1892)  ;  Capital 
City  Gas  Co.  v.  Charter  Oak  Ins.  Co.,  51  Iowa,  31,  35  (1879);  Ee  Des 
Moines  Water  Co.,  48  Iowa,  324,  331  (1878).  But  the  following  cases 
hold  that  such  property  should  be  taxed  where  situated.  Dover  v.  Maine 
Water  Co.,  90  Me.,  180,  182  (1897);  Calgary  v.  Calgary  Gas  Co.,  2  N.  W. 
Ter.,  86  (1897),  aff'g,  in  part,  Be  Calgary  Gas  Co.,  16  Can.  Law  T.,  Occ. 
N.,  235  (N.  W.  Ter.,  1896)  ;  Be  Calgary  Waterworks  Co.,  31  Can.  Law  J., 
310  (N.  W.  Ter.,  1895),  where  the  decision  was  influenced  by  the  provisions 
of  an  ordinance.  See,  also.  Calgary  v.  Calgary  Gas  Co.,  2  N.  W.  Ter.,  165 
(1898).] 

[Where  pipes  have  been  taxed  as  personal  property,  and  the  tax  upon 
the  lot  upon  which  is  situated  the  gas-works,  has  been  paid,  the  assessment 
upon  the  pipes  can  not  afterwards  be  treated  as  an  assessment  upon  the 
lot,  and  the  lot  sold  for  non-payment  of  taxes.  Capital  City  Gas  Co.  v. 
Charter  Oak  Ins.  Co.,  51  Iowa,  31,  35   (1879).] 

[Pipes,  lamp-posts,  and  meters  are  not  exempt  from  taxation  as  "ma- 
chinery," as  they  manufacture  nothing.  Covington  Gas-Light  Co.  v.  Cov- 
ington, 84  Ky.,  94,  98  (1886);  Dudley  v.  Jamaica  Pond  Corp.,  100  Mass., 
183,  184  (1868);  Consolidated  Co.  v.  Baltimore,  62  Md.,  588  (1884);  Be 
Calgary  Waterworks  Co.,  31  Can.  Law  J.,  310  (N.  W.  Ter.,  1895).  But  in 
Be  Consumers'  Gas  Co.,  30  Can.  Law  J.,  157  (Co.  Ct.,  Ont.,  1893),  it  was 
held  that  gas  mains  in  the  public  highways  are  assessable  as  ' '  machinery, ' ' 
forming  a  part  of  the  plant,  or  as  realty,  and  are  not  exempt  because  the 

560 


CH^VP,    Xn.]  TAXATION.  *367 

highways  are.  The  tanks  and  machinery  for  making  gas  are  exempt  as 
* '  machinery  in  manufactories. ' '  Covington  Gas-Light  Co.  v.  Covington, 
84  Ky.,  94   (1886).] 

[A  portable  saw-mill,  which  is  moved  from  place  to  place,  is  not  taxable 
as  "machinery  employed  in  any  branch  of  manufactures"  and  "situated 
or  employed ' '  in  its  temporary  location.  Ingram  v.  Cowles,  150  Mass.,  155 
(1889).] 

T.  owned  a  steam  saw  and  grist-mill  situated  on  and  attached  to  the  land 
of  B.  After  assessment  to  T.  for  taxes,  T.  sold  the  mill  to  W.  On  a  bill 
filed  by  W.  to  enjoin  the  collection  of  the  tax  on  the  ground  that  the  mill 
was  a  fixture  and  as  such  its  value  was  included  in  the  assessment  of  the 
land,  held,  that  the  mill  was  personalty;  and  that,  if  assessed  with  the 
land  and  not  as  personalty,  and  no  taxes  were  due,  the  plaintiff 's  remedy 
was  in  law  and  not  in  equity.  Witherspoon  v.  Nickels,  27  Ark.,  332  (1871). 
See,  also,  Patterson  v.  Delaware  Co.  (infra) ;  People  v.  Cassity,  46  N.  Y., 
46,  49   (1871). 

[The  following  cases  hold  that  buildings  and  other  structures  erected  by 
a  lessee,  or  by  a  licensee  having  the  right  of  removal,  are  not  taxable  as 
realty.  McGee  v.  Salem,  149  Mass.,  238  (1889);  John  T.  Dyer  Company's 
App.,  21  Pa.  Co.,  442  (1898);  East  Tenn.,  V.  &  G.  R'y  Co.  v.  Morristown, 
35  S.  W.,  771,  774  (Tenn.  Ch.,  1895),  where  the  term  was  ninety-nine  years; 
Clove  Spring  Iron  Works  v.  Cone,  56  Vt.,  603,  608  (1884)  ;  Carter  v.  Tyler 
County,  45  W.  Va.,  806,  808  (1899);  Wilson  v.  Youst,  43  W.  Va.,  826,  834 
(1897).  The  last  two  cases  related  to  machinery  of  oil-wells,  which  is 
regulated  by  statute.] 

[The  following  cases  hold  that  buildings,  machinery,  and  fixtures,  owned 
by  a  lessee  or  by  a  licensee,  are  taxable  as  realty.  Union  Compress  Co.  v. 
State,  64  Ark.,  136  (1897);  Russell  v.  New  Haven,  51  Conn.,  259,  262 
(1883);  Foxcroft  v.  Straw,  86  Me.,  76  (1893);  Flax  Pond  Water  Co.  v. 
Lynn,  147  Mass.,  31,  33  (1888);  Milligan  v.  Drury,  130  Mass.,  428,  430 
(1881),  a  building  resting  upon  timbers  laid  upon  the  top  of  the  ground 
expressly  for  the  purpose  of  removal ;  People  v.  Commissioners  of  Taxes, 
80  N.  Y.,  573,  575  (1880);  Ex  parte  Makepeace,  31  N.  C,  91  (1848); 
West  Virginia,  C.  &  P.  R.  R.  Co.  v.  Mclntire,  44  W.  Va.,  210,  212  (1897), 
governed  by  the  Code.] 

[A  statute  providing  that  grain  elevators  upon  railroad  lines  shall  be 
taxed  as  personal  property,  refers  to  structures  not  owned  by  the  railroad 
company.  Chicago,  M.  &  St.  P.  R'y  Co.  v.  County  of  Houston,  38  Minn., 
531   (1888).] 

[Greenhouses  built  by  a  tenant  are  "erections  and  structural  improte- 
ments"  in  the  sense  of  the  Vahiaticm  Act,  1854.  Gilchrist  v.  Lanarkshire 
Assessor   (1898),  35  Scot.  Law  Rep.,  663.] 

In  People  v.  Cassity,  46  N.  Y.,  46  (1871),  the  term  "land"  used  in  tlit' 
statute,  was  considered  to  include  such  an  interest  in  real  estate,  though 
less  than  a  fee,  as  will  protect  the  erection  or  affixing  thereon,  and  the 
possession  of  buildings  and  fixtures,  and  that  such  buildings  and  fixtures 
were  liable  to  assessment  as  the  lands  of  whomsoever  has  that  interest  in 
36  561 


*'it\7 


367  THE  LAW   OP   FIXTURES.  [CHAP.    XII. 

the  real  estate  and  owns  and  possesses  the  fixtures.     The  property  in  ques- 
tion was  the  track  of  a  street  railway  company  laid  down  in  a  highway 
where  the  company  had  not  the  fee,  but  tlie  written  consent  of  the  owners 
of  the  adjoining  hunls,  giving  the  exclusive  right  to  use  the  land  occupied 
by  the  company  for  the  passage  of  their   teams  and  vehicles  during  the 
chartered  existence  of  the  company.     The  statute  in  question  (IE,  S.,  360, 
§§    1,   l!)    provided   that   "all   lands     *     *     *     witliin   this   State   whether 
owned  by  individuals  or  corporations,  shall  be  liable  to  taxation     *     *     *. " 
"The  term  'land'     *     *     *     shall  be  construed  to  include  the  land  itself, 
and  all  buildings  and  all  other  articles  erected  upon  or  affixed  to  the  same 
*     *     *;  and  the  terms  'real  estate'  and  'real  property'     *     *     *     shall 
be  construed  as  having  the  same  meaning  as  the  term  'land'  thus  defined." 
The  fixtures  in  this  case  would  seem  to  have  been  properly  considered  as 
realty  on  the  same  principle  that  tenant 's  fixtures  are  so  considered  during 
annexation.     See,  also,  New  Haven  v.  Fair  Haven,  38  Conn.,  422   (1871), 
and  the  cases  cited  in  the  next  section.     [See  Hughes  v.  Vail,  57  Vt.,  41, 
44  (1885);  Eureka  Min.  Co.  v.  Ferry  County,  28  Wash.,  250,  258  (1902).] 
[The  rails,   poles,   wires,   bridges,   power-house,   and  cars   of   an   electric 
street  railway  are  taxable  as   real  estate.     Newark  &  Hackensack  Co.   v. 
North  Arlington,   65   N.   J.   Law,   150,   151    (1900);    New   York  Guaranty 
Co.  V.   Tacoma  E'y  Co.,  93  Fed.,  51    (U.  S.   C.  C.  A.,  Wash.,   1899);   Be 
London  K'y  Co.,  27  Ont.  App.,  83   (1900);   Be  Toronto  E'y  Co.,  25  Ont. 
App.,  135   (1898),  reversing  33  Can.  Law  J.,  75    (Ass't  Ct.,  Ont.,  1896); 
Be  Bell  Telephone  Co.,  37  Can.  Law  J.,  851   (Ass't  Ct.,  Ont.,  1901).     So,. 
as  to  the  tracks,  stations,  stairways,  superstructures,  viaducts,  piers,  foun- 
dations, tunnels,  substructures  and  masonry  of  a  railroad  above  or  under 
a   city   street.      People   v.   Commissioners   of   Taxes,    101    N.   Y.,   322,    325 
(1886),  reversing   30   Supr.   Ct.    (23   Hun),   687    (1881);    People  v.   Com- 
missioners of  Taxes,   82  N.  Y.,  459,  463    (1880),  aff'g  26  Supr.   Ct.    (19 
Hun),  460,  461    (1879).     So,  as  to  the  wires,  poles,  switchboards,  instru- 
ments and  attachments  of  a  telegraph  or  telephone  line  located  upon  the 
public  land.     Western  Union  T.  Co.  v.  State,  56  Tenn.,  509    (1876)  ;   Bell 
Telephone  Co.  v.  Ascot,  16  Que.,  C.  S.,  436,  443    (1899)  ;   Be  New  West- 
minster Telephone  Co.,  32  Can.  Law  J.,  490   (Br.  Col.,  1896)  ;   Bell  Tele- 
phone Co.  V.  Winchester,  31  Can.  Law  J.,  667,  669    (1895);   Be  Canadian 
Pac.  E.  Tel.  Co.,  34  Can.  Law  J.,  789   (Ass't  Ct.,  Ont.,  1898).] 

[Contra.  The  track,  poles  and  wires  of  a  street  railway  are  not  asses- 
sable as  realty.  State  v.  Anderson,  90  Wis.,  550,  567  (1895) ;  Toronto 
Street  E'y  Co.  v.  Fleming,  37  Up.  Can.,  Q.  B.,  116  (1875),  reversing 
35  Up.   Can.,  Q.  B.,   264    (1874).] 

[Poles  erected  upon  city  streets  and  private  lots  under  license  revoc- 
able at  any  time,  the  owner  of  the  poles  having  no  easement  in  the  high- 
ways, and  wires  thereon  issuing  out  of  a  building,  are  personal  property, 
and  not  taxable  as  real  property,  although  they  may  remain  for  an 
indefinite  period.  Newport  Co.  v.  Assessors,  19  E.  I.,  632,  638  (1896). 
A  switchboard  is  not  a  fixture.  Be  New  Westminster  Telephone  Co., 
32  Can.  Law  J.,  490   (Br.  Col.,  1896).] 

562 


CHAP.    XU.]  TAXATION.  *367 

[As  in  the  case  of  mains  and  pipes,  supra,  the  point  has  arisen  whether 
street  railway  track,  bridges,  poles,  wire  and  cars,  when  treated  as  realty 
for  the  purpose  of  taxation,  should  be  assessed  as  a  whole,  or  apportioned 
to  each  ward  through  which  the  railway  runs.  The  latter  view  is  taken 
in  Ee  London  E 'y  Co.,  27  Ont.  App.,  83  (1900),  and  Be  Bell  Telephone 
Co.,   37   Can.   Law   J.,   851    (Ass't   Ct.,   Ont.,   1901).] 

[Another  question  which  has  engaged  the  attention  of  the  courts  is 
whether  street  railway  track  is  liable  to  assessment  for  public  improve- 
ments. This  is  very  largely  dependent  upon  the  wording  of  the  statute 
authorizing  such  assessments.  In  Koons  v.  Lucas,  52  Iowa,  177,  181 
(1879),  it  was  held  that  a  street  railway  line  should  not  bear  any  part 
of  the  expense,  the  statute  providing  that  the  tax  should  be  levied  upon 
"parcels  of  land  fronting  on  such  highways."  See  State  v.  District 
Court  of  Kamsey  County,  31  Minn.,  354  (1884).  But  in  Cicero  &  Proviso 
S.  E,  Co.  V.  Chicago,  176  111.,  501  (1898),  it  was  held  that  street  railway 
track  must  bear  its  just  proportion  of  the  cost  of  the  construction  of  a 
sewer,  in  the  same  manner  and  to  the  same  extent  as  any  real  estate,  al- 
though Chapter  120,  Section  15  of  the  statutes  provides  that  street  rail- 
way track  shall  be  assessed  as  personal  property  for  general  taxation, 
as  that  chapter  has  no  bearing  upon  special  assessments  upon  contiguous 
property  for  local  improvements  under  another  chapter.  Likewise  the 
right  of  way,  road-bed  and  depots  of  a  railroad  are  liable  to  special 
assessment.  Commissioners  of  Chatham  County  v.  Seaboard  Air  Line  E'y 
Co.,  133  N.  C,  216  (1903).  See  Northern  Ind.  E.  E.  Co.  v.  Connelly,  10 
Ohio   St.,  159    (1859).] 

[The  rails,  sleepers,  bridges,  fences,  buildings,  fixtures,  and  all  struc- 
tures upon  a  railroad  right  of  way  are  real  estate  for  the  purpose  of 
taxation.  New  Mexico  v.  United  States  Trust  Co.,  174  U.  S.,  545,  551 
(1899);  State  v.  Hannibal,  &c.,  E.  E.  Co.,  135  Mo.,  618,  646  (1896); 
Providence  &  W.  E.  E.  Co.  v.  Wright,  2  E.  I.,  459,  462  (1853);  likewise, 
a  private  railroad  track.  Mitchell  v.  Township  of  Lake,  126  Mich.,  367 
372  (1901).  This  is  frequently  a  matter  of  statutory  regulation.  Union 
Trust  Co.  v.  Weber,  96  111.,  346,  350  (1880);  Ohio  &  Miss.  E.  E.  Co.  v. 
Weber,  96  111.,  443,  448  (1880);  Missouri,  K.  &  T.  E'y  Co.  v.  Miami 
County,  73  Pac,   103,  105   (Kan.,   1903).] 

[The  bridges  and  other  structures  of  a  turnpike  company,  having  an 
easement  over  the  land,  are  assessable  as  real  property.  Re  President  of 
Albany  &  B.  Eoad,  94  App.  Div.,  509  (N.  Y.,  1904).] 

[Where  a  statute  provides  that  real  property  shall  be  assessed  only 
in  the  odd  numbered  years,  buildings  erected  by  a  landowner  during  an 
even  numbered  year,  and  which  are  real  property,  cannot  be  taxed  as 
personal  property,  although  it  results  in  such  property  escaping  taxation 
altogether  during  that  year.  Eichards  v.  Wapello  County,  48  Iowa,  507, 
508   (1878).] 

[As  a  general  rule,  houses,  fixed  and  stationary  machinery,  and  other 
atructures   are   a    part   of   the   land    for   the   purpose   of    taxation.   Peoria, 

5f53 


*367  THE  LAW  OP  FIXTURES.  [CHAP.   XU. 

D.  &  E.  R'y  Co.  V.  Goar,  118  111.,  134,  138  (1886);  Heckslier  v.  Sheafer, 
1   Cent.,  tlL'S    (ra.,   1886).] 

[Whatever  is  a  part  of  the  realty  is  taxed  as  such.  Newland  v.  Baker, 
26  Kau.,  341,  345  (1881);  Tremont  Mills  v.  Lowell,  163  Mass.,  283,  286 
(1895) ;  see,  also,  Irvin  v.  N.  O.,  St.  L.  &  Chi.  R.  R.  Co.,  94  111.,  105,  113 
(1879).] 

["Property"  in  a  statute  relating  to  special  assessments  for  adjacent 
improvements,  means  the  land  and  buildings  thereon.  Mound  City  Con- 
struction Co.  V.  Macgurn,  97   Mo.  App.,  403    (1902).] 

[The  rule  to  be  applied  is  to  be  decided  by  principles  no  less  rigid 
than  those  which  would  be  applied  to  a  question  of  fixtures  arising  be- 
tween vendor  and  vendee;  hence,  where  the  owner  of  land  annexes  ma- 
chinery essential  to  his  business,  it  is  taxable  as  realty.  People  v.  Wal- 
dron,   26   App.   Div.,   527    (N.   Y.,   1898).] 

[Machinery  in  water-works  is  real  estate  for  the  purpose  of  taxation.  Be 
Des  Moines  Water  Co.,  48  Iowa,  324,  331  (1878)  ;  likewise,  engines,  boiler, 
dynamos  and  machinery  in  a  power-house  of  an  electric  street-railway. 
Detroit  United  R'y  v.  Board  of  Commissioners,  98  N.  W.,  997,  999  (Mich., 
1904).] 

[The  Lands  Valuation  (Scotland)  Act,  1854,  sec.  42,  provides  that 
' '  lands  and  heritages ' '  shall  extend  to  and  include  all  machinery  ' '  fixed 
or  attached."  Held,  under  that  section,  that  machinery  attached  by  the 
proprietor  of  a  foundry  in  order  that  it  may  be  used  permanently,  and 
where  the  building  has  been  specially  adapted  to  its  use,  and  would  re- 
quire to  be  altered  if  removed,  is  a  part  of  the  land,  although  it  can 
be  separated  without  injury;  but  machinery  not  affixed  is  not  part  of 
the  land.  The  law  applicable  in  questions  between  heir  and  executor,  and 
not  that  between  landlord  and  tenant,  seems  to  govern.  Steam  ham- 
mers bolted  to  logs  are  a  part  of  the  realty,  where  the  logs  are  let  into 
a  specially  prepared  concrete  foundation,  although  the  bolts  do  not  pass 
into  the  concrete;  but  cranes  running  upon  rails  are  not.  Dundee  Assessor 
V.  Carmichael,    (1902),  39  Scot.  Law  Rep.,  573).] 

[Boilers,  engines,  derricks,  tanks,  boiler-houses,  store-houses  and  tank- 
houses  erected  for  temporary  use,  and  moved  from  time  to  time  as  the 
business  of  drilling  for  oil  requires,  are  not  taxable  as  real  estate.  Mellon 
V.  Allegheny  County,  3  Pa.  Dist.,  422   (1894).] 

[Mill  machinery  is  taxable  as  personal  property.  Hamilton  Mfg.  Co. 
V.  Lowell,  69  N.  E.,  1080  (Mass.,  1904)  ;  so,  as  to  a  dynamo  and  switch- 
board under  the  statute.  Newport  Co.  v.  Assessors,  19  R.  I.,  632,  636 
(1896).] 

[Machinery,  although  so  attached  as  to  be  a  part  of  the  realty  be- 
tween grantor  and  grantee,  lessor  and  lessee,  is  taxable,  as  personal  prop- 
erty at  common  law.  The  doctrine  of  fixtures,  as  between  vendor  and 
vendee,  lessor  and  lessee,  mortgagor  and  mortgagee,  though  recognized  in 
Maryland  as  to  these  parties,  has  never  been  imported  into  the  law  of 
taxation.  Commissioners  of  Anne  Arundel  County  v.  Baltimore  Sugar 
Co.,  58  Atl.,   211,   212    (Md.,   1904).] 

564 


CHAP.  Xn.]  TAXATION.  ♦368 

*Ho\vever,  it  has  been  held  in  Connecticut  in  the  ease  [*368] 
of  Sprague  v.  Lisbon/  that  under  a  statute  providing  that 
"mills"  shall  be  taxable,  the  machinery  therein  contained  is 
taxable  as  a  part  of  the  mill  whether  realty  or  personalty,  and 
notwithstanding  the  fact  that  the  owner  thereof  is  a  non-resident 
of  *the  State.  In  Pennsylvania,  where  the  criterion  of  [*369] 
physical  annexation  has  been  abandoned,  where  a  cotton- factory 
was  assessed  as  "square  of  ground,  factory  and  machinery," 
(the  whole  being  assessed  as  real  estate)  and  a  tax  levied  on  the 
valuation  for  county  purposes,  it  was  held  that  both  under  the 
general  terms  of  the  statute,  and  as  a  part  of  a  "mill,"  the 
machinery  was  properly  assessed  as  real  estate.^ 

[All  permanent  fixtures  are  a  part  of  the  land  at  common  law;  but 
it  is  competent  for  a  legislature,  unless  restricted  by  the  State  or  Federal 
Constitution,  to  declare  every  species  of  property  personal  for  the  pur- 
pose of  taxation,  and  authorize  the  person  purchasing  at  a  tax-sale  thereof, 
to  detach  and  remove  trees,  crops,  or  even  windows  and  doors.  Where  a 
statute  makes  it  the  duty  of  an  assessor  to  list  steam-engines  as  personal 
property,  it  will  be  presumed  that  he  did  not  value  them  in  assessing  the 
real  estate.     Johnson  v.  Eoberts,  102  111.,  655,  659   (1882).] 

[Where  the  lessees  of  a  "store"  covenanted  to  pay  all  taxes  levied 
thereon,  they  are  bound  to  pay  the  tax  upon  the  land  under  the  store. 
Hooper  v.  Farnsworth,  128  Mass.,  487,  488   (1880).] 

[Where  an  act  in  regard  to  assessing  taxes  upon  the  property  of  a  rail- 
road company,  names  "side  tracks"  as  a  distinct  property,  without 
other  designation  or  definition,  it  necessarily  implies  the  land  to  which 
it  is  attached  is  to  be  included.  "The  ties  and  rails  are  attached  to  the 
land  and  a  severance  would  destroy  the  side  tracks.  Moreover,  side  tracks 
are  built  upon  a  bed  of  earth,  generally  filled  up  even  with  the  rails.  Gen- 
erally speaking,  the  land  is  almost  valueless  without  the  track,  and  the 
track  without  the  land  is  only  valuable  in  the  worth  of  the  rails  and 
ties."     State  v.  Hannibal,  &c.,  E.  E.  Co.,  135  Mo.,  618,  645   (1896).] 

[For  the  purpose  of  taxation,  nursery-stock  owned  by  the  land-owner, 
is  a  part  of  the  realty.     Wilson  v.  Cass  County,  69  Iowa,  147   (1886).] 

130  Conn.,  18    (1861).     See  Farrar  v.  Stackpole,  ante,  p.   *17. 

2  Patterson  v.  Delaware  Co.,  70  Pa.  St.,  381  (1872).  The  statute  re- 
ferred to  (Act  of  April  29,  1844,  §  32),  provides  that  "all  real  estate, 
to  wit,  houses,  lots  of  grounds,  ground-rents,  mills  and  manufactories  of 
all  kinds,  furnaces,  forges,  bloomeries,  distilleries,  malt-houses,  breweries, 
vine-yards,  fisheries,  ferries,  wharves,  and  all  other  real  estate  iwt  exempt 
by  law  from  taxation,  shall  be  valued  and  assessed  for  all  State  and  county 
purposes. ' ' 

[Under  Act  of  15th  of  April,  1834.  §  4,  providing  that  "manufactoriea 
of  all   descriptions"   shall    be   subject    to   assessment    as   real    estate,   ma- 

r)G5 


*369  THE  LAW  OP  FIXTURES.  [CHAP.   XII. 

The  subject  has  also  been  somewhat  considered  with  refer- 
ence to  the  rolling-stock,  etc.,  of  railroad  corporations.  As  re- 
spects the  taxation  of  corporations,  special  rules  are  generally 
prescribed  by  statute;  but  "where  railroad  property  is  taxed 
as  other  property  is,  the  personalty  should  be  assessed  to  the 
company  at  the  place  of  its  business  office;  that  being  the  legal 
situs  of  its  personalty. "  3  As  to  whether  such  rolling-stock  is 
realty  or  personalty,  there  is  much  conflict  of  opinion.  The 
subject  has  already  been  somewhat  considered  in  a  preceding 
chapter ;  •*  and,  as  respects  the  taxation  of  that  species  of  prop- 
erty, in  the  absence  of  statutory  regulations  on  the  subject  either 
expressly  or  by  fair  implication  defining  its  status,  the  better 
opinion  seems  to  be  that  it  should  be  taxable  as  personal  prop- 
erty.'^  It  is,  however,  competent  for  the  legislature  to  fix  its 
status  either  as  being  realty  or  personalty.^ 

chinery  affixed  to  tlie  premises  by  a  lessee  is  taxable  as  real  estate.  Lu- 
zerne County  V.  Galland,  3  Luz.  Leg.  Reg.  R.,  11  (1884);  but  machinery 
used  for  printing  and  publishing  a  newspaper  is  not  a  "manufactory"; 
and  if  it  belongs  to  a  tenant  it  is  not  taxable  as  real  estate.  Wilkes- 
Barre  Times  v.  Wilkes-Barre,  10  Pa.  Dist.,  691    (1901).] 

3  Cooley  on  Taxation,  273,  and  cases  there  cited. 

4  Ante  p.  *34. 

5  See  Randall  v.  Elwell,  52  N.  Y.,  521  (1873);  s.  c,  11  Amer.  Rep., 
747;  Sangamon,  etc.  R.  R.  Co.  v.  Morgan,  14  111.,  163  (1852);  Pacific 
E.  R.  Co.  V.  Cass  Co.,  53  Mo.,  17  (1873) ;  Orange  &  Alexandria  R.  R. 
Co.  V.  Alexandria,  17  Gratt.,  176  (1867);  City  of  Dubuque  v.  Illinois 
Central  R.  R.,  39  Iowa,  56,  86  (1874),  and  cases  therein  cited.  See,  also, 
ante,  chap.  1,  p.  *34.  [Philadelphia,  W.  &  B.  R.  R.  Co.  v.  Appeal  Tax  Ct., 
50  Md.,  397,  416  (1878);  Appeal  Tax  Ct.  v.  Nor.  Cent.  R'y  Co.,  50  Md., 
417,  420  (1878)  ;  Appeal  Tax  Ct.  v.  Pullman  P.  C.  Co.,  50  Md.,  452,  457 
(1878)  ;  Ricker  v.  American  Loan  &  Trust  Co.,  140  Mass.,  346,  349  (1885)  ; 
Detroit  v.  "Wayne  Circuit  Judge,  127  Mich.,  604,  606  (1901);  Salt  Lake 
County  V.  Board  of  Equalization,  18  Utah,  172,  176  (1898).  Contra. 
Cincinnati,  N.  O.  &  T.  P.  R.  R.  Co.  v.  Commonwealth,  81  Ky.,  492,  503 
(1883);  Louisville  &  N.  R.  R.  Co.  v.  State,  64  Tenn.,  663,  802   (1875).] 

[Pullman  sleeping  cars  are  personal  property,  and,  under  the  statute, 
should  be  reported  by  the  companies  operating  them,  without  regard  to 
ownership.     Carlisle  v.   Pullman   P.   C.   Co.,   8   Colo.,   320,   324    (1885).] 

oSee  Louisville  and  N.  A.  R.  R.  Co.  v.  The  State,  25  Ind,,  177  (1865); 
Bangor  &  P.  R.  R.  Co.  v.  Harris,  21  Me.,  533  (1842)  ;  Cumberland  Marine 
Railway  v.  Portland,  37  Me.,  444  (1854)  ;  State  v.  Severance,  55  Mo.,  378 
(1874);  Binney's  Case,  2  Bland.  Ch.,  146  (3829);  Maus  v.  Logansport,  P. 
&  B.   R.   R.,   27   111.,   77    (1862),   where  the  statute  in  question  was  con- 

566 


CHAP.   XII.  J  POOR   RATES.  *370 

*Irrespective,  however,  of  the  question  whether  an  an-  [*370] 
nexation  to  the  land  is  a  parcel  of  the  realty  or  personal  in  its 
nature,  the  election  on  the  part  of  the  taxing  power  to  consider 
it  as  real  estate  involves  the  necessity  of  treating  it  as  such 
throughout  all  the  process  of  the  collection  of  the  taxJ 

II.    Poor  Rates,  etc. 

The  Statute  43  Eliz.,  eh.  2,  §  1  {amio  1601),  entitled  ''An 
Act  for  the  Relief  of  the  Poor,"  enacts  that  competent  sums, 
to  be  levied  for  the  purposes  in  said  Act  specified,  shall  be  raised 
by  taxation  of  every  occupier  of  lands,  houses,  tithes  impropriate, 
etc.,  in  the  parish. 

In  the  construction  of  this  Statute  it  is  to  be  observed  that  this 
poor  rate  is  not  considered  a  tax  upon  the  land,  but  a  personal 
charge  in  respect  of  the  land ;  ^  and  the  occupier  is  ratable  by 
whatever  tenure  he  holds.^ 

sidered  by  the  use  of  the  terms  "fixed  and  stationary  personal  property" 
with  reference  to  the  stations  and  track,  to  be  intended  to  create  a 
species  of  personal  property  not  before  known  to  the  law,  for  the  non-pay- 
ment of  taxes  upon  which  the  collector  might  levy  upon  the  rails  and  re- 
move them  from  the  track  for  the  purpose  of  selling  them.  Rolling-stock 
may  by  legislative  enactment  be  made  realty  for  certain  specified  purposes 
only,  in  which  case  it  remains  in  other  respects  personalty.  Chicago  &  N. 
W.  R'w'y  Co.  V.  Ft.  Howard,  21  Wis.,  44   (1866), 

[See  Ledoux  v.  LaBee,  83  Fed.,  761,  765  (U.  S.  C.  C,  S.  Dak.,  1897).] 

[In  Illinois,  rolling  stock  is  personal  property  by  statute.  Ohio  & 
Miss,  E.  R.  Co.  V.  Weber,  9(5  111.,  443,  448  (1880);  Union  Trust  Co,  v. 
Weber,  96   111.,   346,   350    (1880).] 

[Locomotives  and  cars  are  not  taxable  as  "appendages"  to  a  railroad. 
State  Treas.  v.  Somerville  &  E.  R.  R.  Co.,  28  N.  J.  Law,  21,  26  (1859).] 

7  Flanders  v.  Cross,  10  Cush.,  514  (1852),  where  it  was  held,  that  a  house 
owned  by  a  non-resident  of  the  State  and  standing  upon  the  land  of 
another  by  liis  permission,  which  house  was  assessed  to  such  non-resident 
as  real  estate  and  advertised  for  sale  as  such,  could  not  subsoqnontly 
be  sold  by  the  collector  as  personal  property.  Such  house,  moreover,  if 
personalty,  would  not  be  taxable  where  it  was  situated,  but  at  the  resi- 
dence of  the  owner.  [P.ut  see  Tunica  County  v.  Tate,  78  Miss.,  294,  299 
(1900).] 

"Rowls  v.  Oolls,  Cowp.,  453  (1776). 

"Bute  (Lord)  v.  Grindall,  1  Term,  343  (1786);  Rex  v.  Bell,  7  Id.,  598 
(1798). 

567 


*371  THE  LAW  OF  FIXTURES.  [CHAP.   XII. 

[*371]  *As  to  what  constitutes  an  "occupier  of  land"  within 
the  meaning  of  the  statute,  there  is  more  difficulty.  This  ques- 
tion has  arisen  in  relation  to  a  variety  of  different  annexations 
or  quasi  annexations  to  the  soil,  which  will,  so  far  as  they  seem 
relevant  to  the  subjects  treated  of  in  this  volume,  be  here  con- 
sidered. 

It  is  settled  by  a  series  of  cases,  that  reservoirs  for  contain- 
ing water,  and  pipes  laid  in  the  ground  for  conveying  water  or 
gas,  from  the  use  of  which  profit  is  derived  to  the  proprietors, 
are  comprehended  within  the  legal  description  of  land  for  which 
such  proprietors  are  ratable  as  occupiers  in  the  parish  in  which 
such  articles  are  located;  and  this  notwithstanding  the  owner- 
ship of  the  soil  itself,  in  which  they  are  situated,  may  be  in  other 
persons,  the  title  of  the  land  being,  as  we  have  seen,  entirely 
immaterial;  ^'^      and     notwithstanding     also     the     fact     that 

"If  a  disseisor  obtain  possession  of  land,  he  is  ratable  as  the  occupier 
of  it. ' '     Lord  Kenyon,  in  Rex  v.  Bell. 

It  seems  settled,  however,  that  in  order  to  constitute  an  occupancy 
under  the  Statute,  something  more  than  a  mere  easement  or  license  (the 
possession  of  the  land  remaining  in  another)  is  requisite.  The  occupation 
or  possession  should  be  an  exclusive  one.  Eex  v,  Trent  &  Mersey  Naviga- 
tion Co.,  4  B.  &  C,  57  (1825)  ;  Rex  v.  Mersey  &  Irwell  Navigation  Co.,  9 
B.  &  C,  95  (1829);  Reg.  v.  Morrish,  32  L.  J.,  i\I.  C,  245  (1863);  s.  c, 
10  Jur.  (N.  S.),  71;  Watkins  v.  Milton-next -Gravesend,  L.  R.,  3  Q.  B., 
350  (1868);  Grant  v.  Oxford  Local  Board,  L.  R.,  4  Q.  B.,  9  (1868).  See, 
also,  Cory  v.  Church  Wardens  of  Greenwich,  L.  R.,  7  C.  P.,  499   (1872). 

See,  however,  Cory  v.  Bristow,  L.  R.,  1  C.  P.  D.,  54  (1875),  reversing 
S.  c,  L.  R.,  10  C.  P.,  504;  44  L.  J.,  M.  C,  153,  [affirmed  by  the  House 
of  Lords  (1877),  10  Cox  Mag.,  572.  In  this  case  payment  was  made  for 
the  privilege,  and  was  an  interest,  not  a  mere  license.] 

10  Rex  v.  Bath,  14  East  609  (1811)  ;  Rex  v.  Rochdale  Co.,  1  M.  &  S.,  634 
(1813)  ;  Reg.  v.  East  London  Water-works  Co.,  18  Q.  B.,  705  (1852)  ;  s.  C, 
21  L.  J.,  M.  C,  174;  Rex  v.  Chelsea  Water-works  Co.,  5  B.  &  Ad.,  1,56 
(1833);  Reg.  v.  West  Middlesex  Water-works,  1  Ell.  &  Ell.,  716  (1859); 
Rex  V.  Brighton  Gas  Light  Co.,  5  B.  &  C,  466  (1826)  ;  s.  c,  8  D.  &  R., 
308;  Regina  v.  East  London  Water-works  Co.,  21  L.  J.,  M.  C,  174  (1852)  ; 
Talargoch  Mining  Co.  v.  St.  Asaph  Union,  L.  R.,  3  Q.  B.,  478  (1868),  a 
water-course  partly  open,  partly  tunneled,  and  party  conducted  in  pipes. 
See,  also,  Providence  Gas  Co.  v.  Thurber,  2  R.  I.,  15  (1851).  [Edin- 
burgh Water  Co.  v.  Hay  (1854),  Pa  torso  n  (Scotch  App.),  304;  Municipal 
Council  of  Sydney  v.  Australian  Gaslight  Co.,  3  N.  S.  W.  St.  E.,  66 
(1903);  Municipal  Council  of  Sydney  v.  Sydney  Power  Co.,  3  N.  S.  W. 
St.  R.,  87   (1903).] 

568 


CHAP.  XII.]  POOR  RATES.  *372 

*another  person  is  ratable  for  the  oecupaney  of  the  siir-  [*372] 
face  of  the  land  over  the  pipes.^^  In  like  manner  an  electric 
telegraph  company  is  liable  to  be  rated  as  an  occupier  of  land 
in  respect  of  its  wires  and  posts  placed  along  the  line  and  on  the 
land  of  a  railway  company;  and  this  notwithstanding  the  latter 
may  require  their  removal  to  a  more  convenient  place,  which 
only  shows  that  the  company  are  strictly  tenants  at  will  of  the 
soil  occupied  by  them.^^     go,  also,  as  to  a  tramway  company  in 

But  where  the  act  (32  Geo.  3,  c.  69)  authorized  a  rate  upon  the  tenants 
and  occupiers  of  all  messuages,  houses,  warehouses,  etc.,  and  other  build- 
ings, gardens  or  garden-grounds,  and  other  tenements,  without  using  the 
word  * '  land ' '  used  in  the  Stat,  of  Eliz.,  it  was  held,  that  under  this  act, 
the  trunks,  pipes,  etc.,  for  supplying  water,  did  not  constitute  a  tenement. 
Eex  V.  Manchester  &  Salford  Water-works  Co.,  1  B.  &  C,  630  (1823). 
See,  also,  Eeg.  v.  East  London  Water-works  Co.,  21  L.  J.,  M.  C,  49 
(1851);  s.  c,  nom.,  East  London  Water-works  Co.  v.  Mile  End,  Old  Town, 
17  Q.  B.,  512;  Rex  v.  Mosley,  2  B.  &  C,  226  (1823).  But  in  a  similar 
case  where  after  the  enumerated  subjects  of  the  rate  the  word  "heredita- 
ments ' '  was  used,  followed  by  an  exception  as  to  "  meadow  and  pasture 
ground, ' '  the  exception  was  regarded  as  showing  that  the  word  ' '  heredi- 
taments" was  used  in  its  larger  sense,  and  the  mains,  pipes,  etc.,  were  held 
ratable.  Rex  v.  Shrewsbury,  3  B.  &  Ad.,  216  (1832).  See,  also,  Sheffield 
United  Gas  Light  Co.  v.  Sheffield,  4  B.  &  S.,  135  (1863);  s.  c,  9  Jur. 
(N.  S.),  623;  Rex  v.  Birmingham  Gas  Light  Co.,  1  B.  &  C,  506  (1823); 
s.  c,  2  D.  &  R.,  735;  Rex  v.  Birmingham  &  Staffordshire  Gas  Light  Co., 
6  A.  &  E.,  634  (1837)  ;  s.  c,  1  N.  &  P.,  691;  Reg.  v.  Cambridge  Gas  Light 
Co.,  8  A.  &  E.,  73  (1838);  s.  c,  3  N.  &  P.,  262;  Reg.  v.  Midland  Railway 
Co.,  L.  R.,  10  Q.  B.,  389  (1875),  and  cases  therein  cited.  The  corpora- 
tions in  these  cases  had  the  exclusive  right  of  occupancy  by  act  of  Parlia- 
ment. 

Perhaps  it  would  be  more  correct  to  say  that  the  corporations  in  these 
cases  were  the  occupiers  of  the  land  filled  by  the  pipes,  though  the  form 
of  expression  in  the  text  is  often  used  in  the  cases.  See  Rox  v.  Chelsea 
Water-works,  5  B.  &  Ad.,  156  (18.33);  Rog.  v.  West  Middlesex  Water- 
works, 1  Ell.  &  Ell.,  716  (1859);  Reg.  v.  Southwark  &  Vauxhall  Water 
Co.,  6  E.  &  B.,  1008,  1014   (1856),  per  Wightman  and  Erie,  JJ. 

[Where,  by  statute,  a  township  board  had  the  exclusive  right  to  lay 
gas-mains  within  the  township,  wiiich  they  were  rof|uircd  to  keep  in  re- 
pair, and  the  owner  of  gas  works  supplied  gas  to  the  public  tlirough 
these  mains,  making  the  connection  between  the  mains  and  the  premises 
of  consumers,  held,  that  the  township  bn;ird  ami  not  the  owner  of  the  gas- 
works were  the  occiipiers  of  Uv.  gas-mains.  Southport  v.  Ormskirk  Com. 
[1894],  1  Q.  B.,  196,  aff'g  [1893]   2  q.  B.,  46K.] 

11  Rex  V.  Chelsea  Water-works,  5  B.  &  Ad.,   156    (1833). 

12  Electric    Telegraph    Co.    v.    Salford,    11    Exch.,    181     (18.55);    Rog.    v. 

509 


•373  THE  LAW  OP  FIXTURES.  [CHAP.   XII. 

respect  of  its  tramway  or  track.' ^  So,  moorings  fixed  to  the 
bed  of  the  river,  described  as  being  "two  large  fan-shaped 
screws  secured  to  the  soil,"  and  connected  together  by  means 
of  two  chains,  are,  it  seems,  so  attached  to  that  part  of  the 
soil,  that  if  a  person  is  the  occupier  of  the  moorings  he  will 
be  occupier  of  the  soil  and  ratable  therefor.'"*  So,  where  a  per- 
son established  and  maintained  a  pier  formed  of  two  barges, 
[*373]  *one  of  which  always  floated  and  was  connected  by  a 
platform  with  another  which  floated  at  high  water,  but  at  low 
water  rested  on  blocks  fixed  in  the  bed  of  the  river  for  that  pur- 
pose, the  barges  being  kept  in  their  places  by  iron  cables  fastened 
to  iron  anchors  permanently  placed  in  the  bed  of  the  river,  and 
by  an  iron  chain  from  the  barge  nearest  the  shore  to  an  iron 
staple  fixed  in  stone  steps  or  stairs  abutting  on  a  public  street, 
the  first  barge  being  connected  with  said  stairs  by  a  platform 
not  fixed  but  removed  every  night;  the  pier  being  solely  con- 
trolled by  the  person  maintaining  it  and  permanently  kept  and 
used  for  embarking  in  and  landing  from  steamboats,  it  was 
held,  that  the  person  maintaining  such  pier  was  an  occupier  of 
land  by  the  use  made  of  the  blocks,  the  stairs  for  holding  the 
staples  and  of  the  iron  anchors  in  the  bed  of  the  river.^^ 

North  Staffordshire  Ewy.  Co.,  3  Ell.  &  Ell.,  392  (1860).  See,  also,  Keg. 
V.  East  London  Water-works  Co.,  21  L.  J.,  M.  C,  174  (1852)  ;  Cory  v. 
Bristow,  L.  K.,  1  C.  P.  D.,  54  (1875);  Pex  v.  Trent  &  Mersey  Naviga- 
tion Co.,  and  other  cases  cited  ante,  p.  *370. 

[So,  as  to  telephone  wires  and  attachments  upon  buildings  owned  by 
others,  although  the  attachments  were  easily  removed,  and  were  occa- 
sionally changed  from  one  point  to  another.  Lancashire  Telephone  Co. 
V.  Overseers  (1884),  14  Q.  B.  D.,  267,  aff 'g  13  Q.  B.  D.,  700.] 

13  Pimlico  Tramway  Co.  v.  Greenwich,  L.  E.,  9  Q.  B.,  9  (1873)  ;  s.  C, 
43  L.  J.,  M.  C,  29.  See,  also,  Eex  v.  Bell,  7  Term,  598  (1798),  rail  or 
wagon  ways;  Eex  v.  Granville,  9  B.  &  C,  188  (1829),  a  railway  in  a 
colliery;  Eeg.  v.  Midland  Eailway  Co.,  L.  E.,  10  Q.  B.,  389  (1875),  and 
cases  therein  cited. 

"Watkins  v.  Milton-next-Gravesend,  L.  E.,  3  Q.  B.,  350,  355  (1868), 
per  Blackburn,  J.  The  case  was  decided  on  the  ground  that  there  was 
not  an  occupancy  but  only  a  mere  license.  See,  also,  Cory  v.  Bristow,  44 
L.  J.,  M.  C,  153  (1375);  s.  c,  L.  E.,  10  C.  P.,  504  (1875);  L.  E.,  1  C. 
P.  D.,  54   [aff'd   (1877)   2  App.  Cas.,  262.] 

15  Forrest  v.  Greenwich,  8  Ell.  ,&  Bl.,  890  (1858),  following  Eegina.  v. 
Leith,  1  Ell.  &  Bl.,  121   (1852).     See  Eegina  v.  Morrison,  cited  post. 

[Where  pontoons  were  moored  in  an  excavated  basin,  shackled  to  piles 

570 


CH.\P.   XU.]  POOR  RATES.  *374 

On  the  other  hand,  however,  it  is  held  that  the  use  of  anchors 
and  stones  to  moor  a  floating  derrick  for  loading  and  unloading 
coal,  which  could  be  hauled  on  board  by  the  machinery  on  the 
derrick,  and  were  merely  dropped  into  the  river,  no  force  being 
used  for  the  purpose  of  fastening  them,  but  only  a  small  portion 
of  ballast  being  removed  from  the  bed  of  the  river  to  enable  the 
stones  to  lie  flat  to  avoid  injuring  other  vessels,  does  not  con- 
stitute an  occupation  of  lands  so  as  to  render  the  possessors  of 
the  derrick  liable  to  be  rated  in  respect  of  these  moorings.i"^ 
All  this  statement  amounts  to  is  that  the  derrick  is  anchored  at 
the  spot  where  she  floats.  It  is  not  like  an  immovable  thing  that 
is  susceptible  of  occupation ;  the  derrick  in  such  case  is  fastened 
to  things  which  are  accessories  to  herself,  and  which  are  movable 
things,  whether  silted  over  or  not,  and  which  constitute  no  more 
an  occupation  of  any  portion  of  the  river  than  would  the  anchor 
of  any  other  *vessel.i"  In  Regina  v.  ]\Iorrison,i8  the  [*374] 
tenants  and  occupiers  of  a  ship-yard  on  the  bank  of  a  tidal  river 
constructed  a  floating-dock  for  use  in  the  repairing  of  vessels, 

driven  into  the  earth,  connected  with  the  shore  by  gangways,  and  used 
for  repairing  ships,  held,  that  the  occupation  of  the  land  was  enhanced 
by  reason  of  such  pontoons  being  used  in  connection  therewith,  although 
the  pontoons  could  be  removed  without  much  trouble,  but  had  only  towed 
away  once  in  several  years,  for  the  purpose  of  being  repaired.  Tyne  Pon- 
toons Co.  V.  Tynemouth  Union   (1897),  76  Law  T.  E.,  782.] 

10  Cory  V.  Church  Wardens  of  Greenwich,  L.  R.,  7  C.  P.,  499  (1872). 
See,  also,  Cory  v.  Bristow,  L.  R.,  1  C  P.  D.,  54  (1875);  s.  c,  L.  R.,  10 
C.  P.,  504;  44  L.  J.  M.  C.  153,  where  the  moorings  were  permanent. 

17  Per  Willes,  J.,  in  Cory  v.  Church  Wardens  of  Greenwich  (su;)ra). 
See,  also,  Grant  v.  Oxford  Local  Board,  L.  R.,  4  Q.  B.,  9  (186S).  In  Grant 
V.  Oxford  Local  Board,  sujna,  Hayes,  J.,  said:  "I  think  the  cases  have 
gone  quite  far  enough  in  deciding  that  things  which  are  substantially 
chattels  are  ratable  as  real  property.  This  boat  is  a  chattel,  and  it  would 
certainly  be  a  strong  thing  to  say  that  it  could  be  rated  as  real  property, 
such  as  a  tenement  or  an  hereditament,  unless  there  is  a  clear  case  of  oc- 
cupation, an  occupation  of  something  which  is  firmly  and  permanently 
affixed  or  attached  to  the  soil  itself."  The  boat  in  question  was  a  barge 
possessed  by  the  University  Boat  Club,  moored  to  two  posts  fixed  in  tlie 
soil,  by  means  of  two  iron  rings  attached  to  the  barge  and  passing  loosely 
round  the  posts.  The  case  went  off  on  the  point  that  there  was  no 
proof  of  exclusive  enjoyment  of  the  posts. 

18  1  Ell.  &  Bl.,  150  (1852).  [Sec  Manchester,  S.  &  L.  R'y  Co.  v.  Kings- 
ton-upon-Hull   (1896),  75  Law  T.  Rep.,  127.1 


571 


•375  THE  LAW  OF  FIXTURES.  [CHAP.  XII. 

which  dock  floated  at  high  water  and  grounded  at  low  water 
upon  the  bed  of  the  river,  and  was  towed  into  deeper  or  shal- 
lower water  as  required  in  the  course  of  getting  vessels  in  course 
of  repairs  in  and  out  of  the  said  dock.  The  workmen  passed  to 
the  said  dock  by  a  gangway,  the  ends  of  which  rested  respective- 
ly on  the  floating-dock  and  building-yard,  such  gangway  being 
secured  to  the  floating-dock  by  a  rope  passing  through  a  staple 
in  the  gang-way  and  tied  to  the  floating-dock.  The  floating- 
dock  itself  was  moored  to  the  bed  of  the  river  by  chains  attached 
to  anchors  or  posts  in  the  bed  of  the  river,  and  also  by  chains 
passing  round  posts  in  the  building-yard,  each  of  which  might 
easily  be  cast  off  or  slackened.  In  order  to  use  the  floating-dock 
a  license  was  necessary,  and  the  harbor  master  had  power  to 
remove  it  when  necessary  for  the  convenience  of  the  harbor. 
Upon  this  state  of  facts  it  was  held,  that  the  floating-dock  per  se 
was  neither  properly  ratable  under  the  Statute  43  Eliz.,  nor  was 
it  an  accessory  to  the  yard  and  ratable  with  it,  as  enhancing 
its  ratable  value.  It  was  likened  by  Lord  Campbell,  C.  J.,  to 
the  case  of  a  ship  at  anchor  which  occasionally  grounds  when 
the  tide  ebbs,  and  which  might  be  approached  either  by  a  boat  or 
a  plank;  and  the  decisions  (hereinafter  referred  to)  respect- 
ing machinery  and  other  fixtures  enhancing  the  ratable 
[*375]  *value  of  realty,  were  considered  as  inapplicable.  This 
case  is  to  be  distinguished  from  Regina  v.  Leith  and  Forest  v. 
Greenwich,  already  cited,  in  that  the  piers  in  those  cases  were 
permanently  fixed  to  the  landing-place,  and  the  one  could  not 
be  used  without  the  other. 

Although  the  occupation  of  mere  chattels  per  se  does  not 
come  within  the  Statute,^  still  it  is  stated  that  lands  and  houses 
are  to  be  rated  according  to  their  annual  value,  although  that 
value  may  be  in  part  derived  from  the  annexation  of  personal 
chattels.2  ^his  doctrine  was  thus  stated  by  Lord  Denman,  C.  J., 
in  Regina  v.  Guest :  ^     "  Real  property  ought  to  be  rated  ac- 

iSee  Eeg.  v.  North  Staffordshire  R'w'y  Co.,  3  Ell.  &  Ell.,  392,  405 
(1860),  and  cases  cited  post  in  this  chapter. 

2  See  Ferard  Fixt.,  258.     See,  also,  Stat.  6  &  7  Wm.  4,  c.  96,  §§  1,  3. 

3  7  Ad.  &  E.,  951  (1838) ;  s.  c,  2  N.  &  P.,  663;  W.  W.  &  D.,  651.  The 
articles  in  question  in  this  case  (which  seems  to  have  been  ruled  on  the 
authority  of  the  case  next  cited  infra)    were  engines  and  machinery  of 

572 


CHAP.   XII.]  POOR  RATES.  *375 

cording  to  its  actual  value,  as  combined  with  the  machinery  at- 
tached to  it,  without  considering  whether  the  machinery  be  real 
or  personal  property,  so  as  to  be  liable  to  distress  or  seizure 
under  a  fieri  facias,  or  whether  it  would  descend  to  the  heir  or 
executor,  or  belong,  at  the  expiration  of  a  lease,  to  landlord  or 
tenant."  "Such  machinery"  (as  was  observed  by  the  same 
learned  judge  in  Rex  v.  Birmingham  &  Staffordshire  Gas  Light 
Co.,  already  cited)  "constitutes  a  mode  of  occupying;  *  *  * 
and  even  where  the  machine  has  not  been  attached,  a  house 
has  been  held  ratable  in  respect  of  it,  if  the  value  of  the  house 
was  increased  by  the  machine.  "■*  The  rule  above  quoted  from 
Regina  v.   Guest,  has  been  approved  in  a  number  of  subse- 

tenants,  which  were  attached  to  frames  serving  as  foundations  by  means 
of  keys  and  jibs  so  as  to  be  tightened,  slackened  or  removed  at  pleasure. 

In  Eex  V.  Birmingham  &  Staffordshire  Gas  Light  Co.,  6  Ad.  &  E.,  634 
(1837),  the  steam-engines  and  machinery  were  for  manufacturing  purposes 
and  were  affixed  to  the  houses  or  buildings. 

4  See,  also,  Staley  v.  Castleton,  33  L.  J.,  M.  C,  178,  182  (1864) ;  s.  c, 
5  B.  &  S.,  505,  per  Blackburn,  J.  Tliis  statement,  however  is  question- 
able.    See  the  following  pages. 

[Things  on  the  premises  for  the  purpose  of  making  and  which  do  make 
them  fit  as  premises  for  the  particular  purposes  for  which  they  are  used, 
whether  attached  to  the  soil  or  net,  are  to  be  taken  into  account  in  ascer- 
taining the  ratable  value  of  such  premises.  Crockett  v.  Northampton 
(1902),  72  L.  J.,  K.  B.,  320.] 

[Under  58  and  59  Vict.,  cap.  41,  greenhouses,  erected  by  a  tenant,  al- 
though removable  as  against  his  landlord,  should  be  valued  as  land.  Gil- 
christ V.  Assessor  for  Lanarkshire   (1898),  25  Sess.  Cas.,  4th  Ser.,  589.] 

[Machines  attached  by  bolts  to  specially  prepared  foundations  are 
"fixed  and  attached"  within  Section  42  of  the  Valuation  (Scotland)  Act 
of  1854;  but  machines  resting  by  weight  alone,  and  traveling  cranes  run- 
ning upon  rails  bolted  to  wooden  beams  fixed  to  the  walls,  are  not  "fixed 
or  attached."     Dundee  v.  Carmichael  (1902),  4  Sess.  Cas.,  5th  Ser.,  525.^ 

[Sec.  42  of  17  and  18  Vict.,  c.  91,  provides  that  all  machinery  fixed 
or  attached  to  lands  should  be  considered  as  lands,  and  valued  accord- 
ingly. Held,  that  while  the  mere  fact  of  annexation  alone  would  not 
make  machinery  realty  for  the  purpose  of  valuation,  yet  the  rules  that 
apply  between  landlord  and  tenant  did  not  apply,  nor  was  the  fact  that 
machinery  could  bo  removed  without  injury  conclusive;  but  steam  engines 
bolted  to  a  foundation  for  quasi-pennancnt  use  to  a  building  specially 
adapted  to  their  use,  and  whose  removal  would  rc(niiro  alteration  of  the 
building  unless  replaced  by  engines  of  precisely  the  same  size  and  shape, 
must  be  valued  as  land.  Cowan  v.  Assessors  for  Midlothian  (1894),  21 
Sess.  Cas.,  4th  Ser.,  812.] 

573 


♦376  THE  LAW  OF  FIXTURES.  [CIIAP.    XII. 

quent  cases.''  From  the  terms  made  use  of  in  some  of  the 
[*37()]  *cases,  it  might  be  inferred  that  in  order  to  make  a  chat- 
tel subject  to  a  rate  upon  land  and  houses  it  is  immaterial 
whether  or  not  it  is  actually  affixed  to  the  premises  subject  to 
the  rate,  provided  the  value  of  the  premises  is  increased  by  it. 
Some  of  the  cases  material  to  this  question  will  be  here  re- 
ferred to. 

5Eeg.  V.  The  Southampton  Dock  Co.,  14  Q.  B.,  587  (1850);  Eeg.  v. 
Haslam,  17  Q.  B.,  220   (1851). 

In  Keg.  V.  The  Southampton  Dock  Co.,  cranes,  steam-engines,  shears, 
derricks,  dolphins,  and  other  like  ponderous  machinery,  attached  to  the 
freehold  and  essential  to  the  business  of  a  dock  company,  but  capable  of 
being  detached  as  easily  and  with  as  little  injury  to  the  freehold  as  other 
fixtures  put  up  for  the  purpose  of  the  tenant 's  trade,  and  usually  valued 
between  incoming  and  outgoing  tenant,  were  held  not  to  be  allowable  de- 
ductions from  the  amount  at  which  the  ratable  value  of  the  property  was 
assessed. 

In  Eeg.  V.  Haslam,  the  articles  in  question  were  chambers  used  in  the 
manufacture  of  sulphuric  acid.  These  chambers  were  made  of  sheet  lead, 
were  13  feet  high,  13  wide  and  from  40  to  60  long,  and  weighed  several 
tons  each.  They  rested  on  and  were  supported  by  frame-work  on  foun- 
dation walls  filled  with  sand,  were  attached  to  the  frame-work  by  leaden 
rivets,  and  were  united  with  the  rest  of  the  works  constituting  a  part  of 
the  freehold  by  lead  pipes  which  might  be  removed  at  pleasure  by  with- 
drawing them  from  the  chambers  after  removing  the  rivets  which  in  the 
case  of  some  of  the  pipes  fastened  them  to  the  frame-work.  When  these 
pipes  were  withdrawn  the  chambers  rested  on  the  ground  by  their  mere 
weight.  The  court  without  determining  whether  or  not  they  were  annexed 
to  the  freehold,  held  that  being  used  as  a  part  of  the  fixed  machinery 
of  the  works,  and  necessarily  attached  to  the  other  buildings  for  the  pur- 
pose of  being  so  used,  though  capable  perhaps  of  being  removed  without 
injury  to  the  other  buildings,  they  were  properly  considered  as  increasing 
the  ratable  value  of  the  buildings.  See,  also,  Eeg.  v.  North  Staffordshire 
Kwy.  Co.,  3  Ell.  &  Ell.,  392   (1860). 

[Things  which  make  the  premises  fit  as  premises  for  the  particular 
purpose  for  which  they  are  used,  are  to  be  taken  into  account  in  ascer- 
taining the  ratable  value  of  such  premises.  Machines  in  a  boiler  works, 
whether  resting  by  their  own  weight,  or  attached  to  keep  them  steady, 
and  although  personal  property,  are  to  be  taken  into  account  as  enhancing 
the  value  of  the  hereditament.  Tyne  Boiler  Co.  v.  Longbenton  (1886), 
18  Q.  B.  D.,  81,  aff'g  (1886)   17  Q.  B.  D.,  651.] 

[The  rule  in  Ireland  differs  from  that  in  England  under  the  Poor  Laws 
Acts;  and,  under  15  &  16  Vict.,  c.  63,  machinery  in  no  way  connected 
with  the  building  and  with  the  water  power  of  the  mill,  ought  not  to  be 
assessed.     Eegina  v.  Bainbridge  Union  (1855),  7  Ir.  Jur.,  332.] 

574 


CHAP.   XII.]  POOR   RATES.  *377 

In  Rex.  V.  St.  Nicholas,  Gloucester,®  the  facts  were  as  follows : 
A  machine  was  erected  in  a  street  leading  by  a  house,  for  the 
purpose  of  weighing  wagons,  carts,  etc.,  the  steelyard  part  of 
said  machine  being  always  situated  in  said  house  which  was 
called  the  "machine-house."  The  house  independent  of  the 
machine  was  worth  51.  per  annum,  and  the  profits  of  the  machine 
about  -iOl.  per  annum.  The  house  was  rated  thus :  ' '  The  mayor 
and  burgesses  of  Gloucester  for  the  machine-house,  24L,  11.  16s." 
The  Sessions  held  that  the  profits  of  the  machine  were  not 
ratable,  and  amended  the  rate  to  51.  only ;  but  in  the  Court  of 
King's  Bench,  the  order  of  the  Sessions  was  quashed,  and  the 
original  rate  held  proper.  Lord  Mansfield  observing  *that  [*377] 
though  the  case  did  not  sufficiently  explain  whether  the  machine 
or  steelyard  was  annexed  to  the  freehold,  yet  the  nature  of  the 
thing  supplied  the  place  of  an  explanation;  it  must  from  the 
very  nature  of  it  be  annexed  to  the  freehold;  it  was  stated  to 
be  the  machine-house,  and  the  steelyard  was  the  most  valuable 
part  of  the  house ;  and  that  the  house  was  built  for  the  machine, 
not  the  machine  for  the  house.  Willis  and  Butler,  JJ.,  concurred, 
observing  that  the  house  being  called  the  "machine-house"  was 
evidently  one  entire  thing.  In  this  case  the  machine  was  clearly 
annexed  to  the  realty,  and  the  court  seem  to  rely  on  that  fact  as 
furnishing  a  ground  for  their  judgment 

The  case  of  Rex  v.  Ilogg,"^  has  been  supposed  to  be  an  au- 
thority for  the  rule  that  things  let  with  a  house  under  the  same 
demise  and  yielding  a  profit  are  ratable  whether  affixed  or  not.^ 
In  this  case  a  building  called  "The  Engine-house,"  consisting  of 
a  bay  of  building  about  eighteen  feet  long  and  nineteen  feet 
wide,  in  which  was  a  machine  or  engine  for  carding  cotton, 
was  rented,  together  with  the  engine,  as  one  entire  subject,  and 
was  rated  to  the  relief  of  the  poor  as  "The  Engine-house."  The 
building,  independent  of  the  machine,  was  worth  only  two 
guineas  per  annum.  The  building  and  the  machine  together 
were  rated  at  '.M.    The  engine  was  generally  worked  by  water, 

el  Term,  723,  note  (1783);  s.  c,  Cald.,  262. 

7  1  Term,  721  (1783);  s.  c,  Cald.,  662. 

8  This  cane  approachcH  nearer  to  the  point  than  any  other  that  has  been 
discovered.  In  the  other  caHCS  rpfcrrcd  to  the  artirlos  enhancing  tlin 
ratable  value  were  more  or  less  attached  to  the  realty. 

575 


*378  THE  LAW  OF  FIXTURES.  [CIIAP.   XII. 

but  freqiieutly  by  baud.  Tbe  building  was  not  a  dwellinghouse, 
nor  was  it  erected  for  the  purpose  of  receiving  the  engine,  but 
was  formerly  used  for  the  purpose  of  turning  bobbins  and  as  a 
weaver's  shop.  The  engine  was  not  fixed  to  the  floor,  but  the 
case  did  not  state  that  it  was  not  otherwise  fastened,  though 
it  did  state  that  it  could  be  moved  at  pleasure  and  carried  out 
and  worked  in  any  other  place,  either  by  water  or  manual  labor, 
and  was  not  adapted  to  [iny  particular  building.  The  case  was 
considered  not  to  be  distinguishable  from  that  of  St.  Nicholas, 
Gloucester,  and  the  rating  sustained.  In  this  case  Buller,  J., 
[*378]  expressed  the  opinion  that  personal  prop*erty  was 
ratable;  and  both  Buller  and  Grose,  JJ.,  thought  the  rate  good, 
as  both  the  house  and  the  engine  were  let  together  under  one 
lease  as  an  entirety.  Grose,  J.,  further  observed:  ''Suppose 
the  owner  of  a  tenement,  which  unfurnished  would  let  only 
for  a  trifling  rent,  fitted  it  up  as  a  malt-house  and  put  a  malt- 
mill  into  it  and  then  let  the  whole  together;  the  whole  must 
be  estimated  together  as  any  other  leasehold  property  accord- 
ing to  its  value."  Ashurst,  J.,  however,  seems  to  have  regarded 
the  question  of  annexation  as  a  material  one,  for  he  said:  "It 
is  only  stated  that  it  is  not  fixed  to  the  floor;  but  it  may  be  fixed 
to  the  walls  of  the  building  without  being  fixed  to  the  floor.  And 
considering  the  nature  of  the  thing,  it  must  be  so;  for  it  is 
stated  that  the  engine  is  worked  by  water,  and  the  force  of  the 
water  would  displace  it  if  it  were  not  fastened  to  the  building. 
We  cannot  take  any  facts  that  do  not  appear  on  the  case,  as  it 
is  now  returned ;  and  it  is  not  stated  negatively  that  the  engine 
is  not  fixed  to  the  house.  At  all  events  part  of  the  subject  is 
ratable;  and  the  rate  is  on  the  Jiouse  itself;  and  if  the  thing 
itself  be  ratable,  the  quantum  of  it  is  not  for  our  consideration, 
but  for  that  of  the  justices  below."  The  true  ground  of  these 
cases  seems  to  be  that  the  carding-engine  and  weighing-machine 
being  demised  together  with  the  house  as  an  entirety,  were  each 
considered  as  part  and  parcel  of  a  building  and  were  rated  as 
such ;  ^  and  the  engine  seems  to  have  been  fixed  in  some  way, 
though  it  is  not  so  stated  in  the  case. 

»See  Eex  v.  Bilston,  5  B.  &  C,  851,  853  (1826),  per  Bailey,  J. 
See.  however.  Rex  v.  Birmingham  &  Staffcr^JsUire  Gas  Light  Co.  (ante), 
per  Lord  Denman. 

576 


CH.\P.    XII.]  POOR   RATES.  *379 

Where  the  machinery  is  annexed  to  the  realty  in  such  a  man- 
ner as  to  constitute  a  fixture,  (whether  removable  or  irremov- 
able), or  in  other  words,  as  to  have  lost  to  some  extent  its  char- 
acter as  a  mere  chattel,  it  seems  clear  that  the  premises  ought 
to  be  rated  in  accordance  with  their  value  as  enhanced  by  such 
combination.^^*  But  the  better  opinion  seems  to  be,  *al-  [*379] 
though  as  has  been  seen  there  are  some  cases  and  dicta 
which  seem  to  support  the  contrary  doctrine,  that  the  profits 
arising  from  a  mere  movable,  personal  chattel  not  attached  to 
the  premises,  ought  not  to  be  included  in  a  rate  professedly 
raised  upon  lands  and  houses  only.^^  In  the  cases  hereinbefore 
cited,  except  perhaps  the  case  of  Rex  v.  Hogg,  the  articles  in 

10  See  the  cases  already  cited  ante;  also.  Rex  v.  Granville,  9  B.  &  C, 
188  (1829),  where  the  lessee  of  a  coal  mine,  being  the  occupier,  was  held 
liable  to  be  rated  for  the  improved  annual  value  caused  by  the  erection  of 
a  steam-engine  and  railway  for  working  the  mine;  Reg.  v.  North  Staf- 
fordshire R'w'y  Co.,  3  Ell.  &  Ell.,  392  (1860).  [Laing  v.  Bishopwear- 
month  (1878),  3  Q.  B.  D.,  299,  306;  see,  also,  Chalmers  (1871),  11  Mac- 
pherson   (Scot.),  983.] 

See,  also,  Staley  v.  Castleton,  33  L.  J.,  M.  C,  178,  182  (1864),  per 
Blackburn,  J.;  Brown  v.  Granville,  10  Bing.,  69  (1833).  In  this  case  a 
watching  and  lighting  act  authorized  a  rate  upon  the  occupiers  of  houses, 
shops,  sheds,  etc.,  and  other  buildings  and  tenements.  A  rate  was  im- 
posed in  respect  of  several  buildings  or  engine-houses  with  the  engines 
affixed  to  them,  which  were  used  for  the  convenient  working  of  a  coal 
mine.  Held,  that  the  engine-houses  and  the  engines  affixed  thereto  were 
ratable  as  being  included  under  the  term  "shed,"  or,  if  not  within  that, 
then  within  the  term  ' '  other  buildings. ' '  The  case  was  distinguished 
from  Rex  v.  Bilston,  hereinafter  referred  to,  in  that  the  buildings  in 
question  were  not  a  mere  adjunct  of  machinery,  but  were  made  a  substan- 
tial subject  of  the  rate  imposed  by  the  act  which  differed  in  its  terms  from 
the  Stat.  43,  Eliz. 

11  See  Ferard  Fixt.,  262;  Reg.  v.  Lee,  L.  R.,  1  Q.  B.,  241  (1866);  s.  C, 
7  B.  &  S.,  188;  35  L.  J.,  M.  C,  105;  12  Jur.,  (N.  S.),  225;  Reg.  v.  North 
Staflfordshire  R'w'y  Co.,  3  Ell.  &  Ell.,  392  (1860);  s.  C,  30,  L.  J.,  M,  C, 
68;  7  Jur.  (N.  S.),  363;  ITarter  v.  Salford,  34  L.  J.,  M.  C,  206,  208 
(1865);  s.  c,  6  B.  &  S.,  591,  per  Crompton,  J.  [See  Municipal  Council 
of  Sydney  v.  Australian  Gaslight  Co.,  3  N.  S.  W.  St.  R.,  66  (1903)  ;  Munic- 
ipal Council  of  Sydney  v.  Sydney  Power  Co.,  3  N.  S.  W.  St.  R.,  87 
(1903).] 

[In  Chidley  v.  Churchwardens  of  West  Ham.  (1874),  32  L.  T.  Rep., 
486,  tanks  forming  the  roofs  of  three  houses,  boiling  backs,  refrigerator, 
water-heater,  mash-tuns,  pumps,  under-backs,  wash-backs,  reservoir  and 
distilling  apparatus  were   held   not   to  be   rated   to   the   poor  rate  as  part 

37  577 


*380  THE  LAW  OF  FIXTURES,  [CHAP.    XII. 

question  seem  to  liave  been  annexed  ^  2  to  the  realty.    Some  other 
cases  on  the  subject  will  now  be  mentioned. 

In  Rcgina  v.  The  North  Staffordshire  Railway  Co.,  where  this 
subject  was  considered,  the  Company  in  addition  to  its  stock  had 
been  obliged  to  provide  turn-tables,  cranes,  weighinjir-machines, 
stationary  steam-engines,  lathes,  electric-telegraph  apparatus, 
office  and  station  furniture  and  gas-works  for  supplying  the 
station  with  gas.  The  turn-tables  and  some  of  the  weighing- 
machines  were  affixed  to  the  freehold  by  means  of  an  iron  rod 
inserted  in  a  large  stone  sunk  in  the  land.  The  lathes  and  steam- 
engines  were  connected  by  means  of  iron  bolts  with  the  build- 
[*380]  ings  in  which  they  *were  placed.  The  telegraph  ap- 
paratus consisted  (1),  of  posts  driven  into  the  ground;  (2)'  of 
wires  passing  through  sockets  annexed  to  the  posts,  but  which 
wires  might  be  disconnected  from  the  posts  without  injuring  or 
displacing  them;  and  (3),  of  the  electrifying  machines  which 
were  in  no  way  affixed  to  the  freehold.  The  gas-works  consisted 
partly  of  buildings  and  partly  of  gasometers,  retorts,  and  the 
other  usual  plant  for  making  gas ;  and  of  the  pipes  for  convey- 
ing the  same  from  the  works  to  the  railway  stations.  The 
other  w^eighing  machines,  wdiich  were  all  used  for  the  purposes 
of  traffic  along  the  line,  and  the  office  and  station  furniture  were 
unconnected  with  the  freehold.  The  question  to  be  determined 
was  w^hether  the  railway  company  was  entitled  to  a  deduction 
in  respect  to  the  additional  amount  of  capital  invested  in  the 
articles  above  described,  or  upon  any  and  what  portion  of  such 
items.  The  judgment  of  the  court  was  delivered  by  Cockburn, 
C.  J.,  who  divided  the  said  articles  into  three  classes,  and  dis- 
posed of  the  same  as  follows :  ' '  First,  things  movable,  such  as 
office  and  station  furniture;  secondly,  things  so  attached  to  the 

of  the  premises.  The  articles  were  not  attached  to  the  premises  except 
by  -weight,  by  pipes  or  by  screws,  and  could  be  easily  removed,  and  are 
all  known  in  the  trade  and  sold  both  as  new  and  as  second  hand.] 

12  In  Eegina  v.  Haslam,  17  Q.  B.,  224  (1851),  the  case  found  that  the 
chambers  were  "attached"  to  the  freehold,  but  not  "affixed  thereto." 
["Colridge,  J. — This  question  seems  to  be  one  of  fact.  Patterson,  J. — 
I  do  not  know  what  is  meant  by  'attached'  to  the  freehold,  but  not  'af- 
fixed.' Whether  they  are  really  let  into  the  land  or  not,  would  be  a  ques- 
tion of  fact;  whether  they  would  go  to  the  heir  or  executor,  would  be 
a  point  of  law. ' '] 

578 


CHAP.   XII.]  POOR  RATES.  *381 

freehold  as  to  become  part  of  it;  and,  thirdly,  things  which, 
though  capable  of  being  removed,  are  yet  so  far  attached  as  that 
it  is  intended  that  they  shall  remain  permanently  connected  with 
the  railway  or  the  premises  used  with  it,  and  remain  perman- 
ent appendages  to  it  as  essential  to  its  working.  It  is  clear  that, 
in  respect  of  the  first  class  of  articles,  a  deduction  should  be 
allowed.  It  is  equally  clear  that  no  deduction  should  be  allowed 
as  to  the  second.  As  to  the  third,  the  question  is  finally  settled 
by  the  decision  of  this  court  in  the  case  of  Regina  v.  Southamp- 
ton Dock  Co.,  14  Q.  B.,  587."  ^  In  the  case  last  cited  the  articles 
in  question  were  conceded  to  be  fixtures;  and  from  the  forego- 
ing description  of  the  articles  comprised  in  the  third  class,  these 
articles  also  are  believed  to  be  fixtures,  and  hence  to  partake 
during  annexation  to  some  extent  of  the  character  of  the  realty, 
though,  if  erected  by  a  tenant,  they  would  undoubtedly  for  some 
purposes  and  in  favor  of  some  persons  be  considered  as  per- 
sonalty. 

*In  Regina  v.  Lee,  already  referred  to,  the  subject  [*381] 
again  came  under  consideration  in  the  Court  of  Queen's  Bench, 
and  it  was  held  that,  on  assessing  gas-works  to  the  poor-rate,  in 
ascertaining  the  gross  estimated  rental  a  deduction  ought  to  be 
allowed  in  respect  to  the  cost  of  the  meters,  which  belonged  to 
the  gas  company,  but  were  connected  with  the  service-pipes  by 
solder,  and  by  means  of  those  pipes  with  the  company's  mains, 
they  being  mere  chattels;  but  that  no  deductions  ought  to  be 
allowed  in  respect  of 

(1.)  Retorts  in  which  the  coals  were  carbonized,  and  which 
consisted  of  circular  pieces  of  clay  to  which  the  heat  was  ap- 
plied, and  also  the  arches  containing  them,  the  pipes  which 
permit  the  gas  to  ascend  from  them,  the  iron  faces  of  them  and< 
the  pipes  over  the  arches,  conveying  the  gas  from  them  through 
the  purifiers  to  the  tanks  where  it  was  received  by  the  gas-hold- 
ers, notwithstanding  the  Avhole  of  those  parts  were  distinct  and 
severable  from  the  floor  and  not  attached  to  it  by  mortar  or 
cement,  but  only  packed  in  fire-clay  to  hold  them  in  place;  such 
retorts  being  considered  not  as  removal)le  fixtures,  but  as  fixtures 
so  connected  with  the  freehold  as  to  have  become  parcel  of  it. 

(2.)     Purifiers,  which  were  massive  iron  vessels  standing  on  a 

1  Ante  p.  •375. 

579 


•382  THE  LAW  OK  FIXTURES.  [CHAP,    XII. 

brick  base  but  not  fixed  thereto,  but  connected  on  the  sides  by 
means  of  screw-bolts  fastened  into  tlie  plates  of  the  purifier, 
with  pipes  passing:  throuiili  the  soil  and  connecting  with  the 
retorts,  tanks  and  gas-holders. 

(3.)  Steam-engines  used  for  driving  the  machinery,  fastened 
by  screw-bolts  to  a  stone  base  fixed  in  the  soil. 

(4.)     Boilers  set  in  brick-work  fixed  in  the  soil. 

(5.)  Gas-holders,  which  were  hollow  cylindrical  vessels  of 
plate  iron  open  at  the  bottom,  but  covered  at  the  top,  rising  and 
falling  by  means  of  iron  columns  and  pulleys  into  circular  tanks 
sunk  in  the  ground,  into  which  the  gas  passed  through  purifiers 
from  the  retorts. 

(6.)  Trade-fixtures,  such  as  pumps  and  exhausters,  which 
were  fixed  to  the  freehold,  but  which  would  be  removable  as 
tenant's  fixtures.  The  articles  specified  in  the  last  five  classes 
were  considered  by  Cockburn,  C.  J.,  in  rendering  his  judg- 
[*382]  *ment,  to  fall  within  the  principle  of  the  cases  of  Regina 
v.  Southampton  Dock  Co.,  and  Regina  v.  North  Stafi^ordshire 
Railway  Co.,  hereinbefore  referred  to,  and  the  classification  of 
the  articles  in  question  in  the  last-mentioned  case  was  approved 
and  applied  to  this.  The  court  in  rendering  their  judgment  in 
this  case  place  their  decision  apparently  also  upon  the  same 
satisfactory  grounds  as  are  applicable  to  ordinary  cases  of  fix- 
tures, that  is,  upon  the  existence  of  an  intention  to  make  the  an- 
nexation a  permanent  improvement  of  the  inheritance;  and 
thereby  place  this  branch  of  the  law  of  fixtures  upon  a  more 
satisfactory  basis  than  it  seemed  to  occupy  theretofore.  The 
case  of  Walmsley  v.  Milne,i  was  approved  and  applied,  as  fur- 
nishing a  principle  applicable  to  the  decision  of  the  case. 
Blackburn,  J.,  referring  to  this  case  and  that  of  Hellawell  v. 
Eastwood,^  said:  "The  idea  is  throughout  the  same — if  the 
things  are  annexed,  though  but  slightly,  with  a  view  to  the 
enhancement  of  the  inheritance  and  the  permanent  improvement 
of  it,  they  may  be  considered  as  part  of  it  for  which  a  hypo- 
thetical tenant  would  be  considered  ratable.  Now,  applying 
that  rule  to  the  present  case,  though  I  was  inclined  at  first  to 
take  an  opposite  view  as  to  some  of  these  articles,  they  are  all 

17  C.  B.  (N.  S.),  115  (1859);  s.  c,  29  L.  J.   (C.  P.),  97. 
2  6  Exch.,  295   (1851);   20  L.  J.  Exch.,  154. 

580 


CHAP.    Xn.]  POOR   RATES.  *383 

with  the  exception  of  the  meters,  attached  to  the  premises,  al- 
though but  slightly;  nevertheless  I  think  it  is  clear  they  all  are 
in  fact  attached  to  the  premises,  and  equally  clear  they  all  are 
in  fact  attached  to  the  premises  with  the  view  of  enhancing 
the  benefit  of  the  premises,  so  as  to  come  within  the  principle 
laid  down  in  the  cases  I  have  mentioned.  The  meters  stand  on 
a  different  footing.  They  are  chattels  themselves,  except  so  far 
as  they  are  attached  to  the  houses  in  which  they  are  put  up. 
They  are  attached  to  the  houses  by  a  pipe  which  comes  in 
through  the  wall  and  is  fastened  to  the  meter.  If  the  meter 
was  attached  to  the  house  so  as  to  render  it  part  of  the  house 
to  improve  it,  then  it  would  become  fixed  property.  But,  in 
fact,  it  is  obvious  that  the  meters  are  kept  as  the  company's 
meters,  to  be  used  as  their  chattels  for  meas*uring  the  [*383] 
gas,  and  were  never  intended  to  be  for  the  benefit  of  the  house 
to  which  they  are  attached  at  all;  they  are  not  part  of  the 
inheritance  of  the  company,  and  cannot  be  said  to  be  so.  Mr. 
White  endeavored  in  his  argument  to  make  out  that  a  meter 
occupies  part  of  the  space  of  a  house,  and  therefore  the  com- 
pany did  by  the  meter  occupy  part  of  the  house.  That  is  not 
so.  Although  the  meter  is  firmly  fixed  to  the  house,  steadied  by 
being  fixed,  that  does  not  make  the  company  the  occupier  of  any 
portion  of  the  house;  any  more  than  a  person  who  has  hired 
out  or  let  a  chattel  which  is  not  fixed  to  the  house  but  enjoyed 
as  a  chattel.  For  these  reasons  I  think  the  meters  are  properly 
matters  of  deduction,  and  the  rest  are  not." 

The  rule  hereinbefore  laid  down  lias  lieen  considered  to  be 
subject  to  this  limitation,  that  where  the  principal  subject- 
matter  is  not  liable  to  be  rated,  neither  is  anything  liable  that 
is  annexed  thereto,  and  which  is  accessory  to  such  principal 
subject-matter."^  It  was  accordingly  h(>ld  in  Kex  v.  Bilston^ 
that  a  steam-engine  erected  solely  for  the  purpose  of  drawing 
water  from  an  iron-stone  mine  (which  was  by  statute  exempt 
from  rate),  and  which  was  of  no  other  use,  was  also  exempt. 
This  doctrine  so  far  as  it  applies  to  the  case  of  mines,  is  to  be 
taken  with  some  limitation ;  and  the  case  of  Rex  v.  Bilston 
has  been  criticised  in  subsequent  cases,  and  its  doctrine  con- 

3  Ferard  Fixt.,  264. 

<5  B.  &  ('.,  851   (1826)  ;  s.  C,  8  D.  &  R.,  734. 

581 


*'<iS'k  THE  LAW  OF  FIXTURES.  [CIIAP.    XII. 


sidorably  restricted,  if  not  overruled.  The  eases  agree  that  if 
the  ensiine  in  that  ease  was  actually  part  and  parcel  of  the 
mine  which  was  exempt,  it  Mould  be  exempt  also;  and  it  seems 
that  the  case,  if  now  supportable  at  all,  must  be  upon  the 
5::round  that  the  engine  was  in  fact  a  part  and  parcel  of  the 
mine.-'*  But  it  seems  to  be  settled  that  where  the  surface,  with 
that  which  has  been  erected  or  constructed  upon  it,  is  essential 
to  the  working  of  the  mine,  and  where  as  such  it  would  have 
a  value  as  surface  land  distinguishable  and  distinguished  from 
[*3S4]  *the  mine  itself,  such  surface  land  and  the  buildings 
erected  upon  it  are  liable  to  the  poor  rate  and  ought  therefore 
to  be  assessed.^  And  it  was  accordingly  held  in  said  case  of 
Guest  V.  East  Dean,  that  the  appellant,  who  was  owner  of  iron 
mines  (non-ratable)  and  who  rented  two  and  one-half  acres  of 
surface  land  partly  over  and  partly  adjoining  the  mines,  and 
occupied  both  mines  and  surface  together  using  the  surface  for 
the  purpose  of  working  the  mines  and  getting  ore,  and  who  had 
erected  thereon  buildings,  engines,  boilers,  machinery,  tram- 
ways, etc.,  which  M^ere  used  solely  for  a'nd  were  necessary  to 
the  use  of  the  mines  and  which  without  the  mines  would  be 
practically  valueless,  was  ratable  in  respect  of  such  surface 
lands,  buildings,  machinery,  tramways,  etc.,  though  occupied 
with  a  non-ratable  subject-matter.^ 

III.    Parochial  Settlements. 

It  was  enacted  by  the  Statute,  13  and  14  Car.  II.,  c.  12,  §  1 
(anno,  1662),  that  within  forty  days  after  any  poor  person 
came  to  settle  in  a  tenement  under  the  yearly  value  of  101., 
two  justices  of  the  peace  might  remove  such  person  or  persons, 
if  likely  to  become  chargeable  to  the  parish  he  or  they  should 

6  See  Guest  v.  East  Dean,  L.  E.,  7  Q.  B.,  334  (1872;)  Talargoch  Mining 
Co.  V.  St.  Asaph  Union,  L.  K.,  3  Q.  B.,  478  (1868);  Kittow  v.  Liskeard 
Union,  44  L.  J.,  M.  C,  23  (1874).  See,  also,  Brown  v.  Granville,  10 
Bing.,  69  (1833),  ante  p.  *379,  note;  Kex  v.  Granville,  9  B.  &  C,  188 
(1829). 

8  Guest  V.  East  Dean  (supra),  per  Cockburn,  C.  J. 

7  See,  also,  Talargoch  Jlining  Co.  v.  St.  Asaph  Union  (supra)  ;  Eeg.  v. 
Metropolitan  Board  of  Works,  L.  K.,  4  Q.  B.,  26   (1868). 

582 


CHAP.    Xn.]  POOR   RATES.  *385 

come  to  inhabit,  to  the  parish  where  he  or  they  were  last  legally- 
settled,  in  default  of  their  giving  sufficient  security,  etc. 

By  the  statute,  3  &  4  W.  &  M.,  c.  11,  §  6  {anno,  1691), 
persons  charged  with  and  paying  their  shares  towards  the  pub- 
lic taxes  or  levies  of  the  town  or  parish,  gained  settlements. 

By  the  Statute  35  Geo.  III.,  e.  101,  §  4  (1795),  the  tenement 
in  respect  of  which  the  taxes  were  paid,  must  be  of  the  yearly 
value  of  lOi.s 

*In  questions  respecting  the  right  to  a  settlement  un-  [*385] 
der  these  statutes,  it  is  sometimes  the  case  that  the  value  of  the 
land  taken  separately  from  the  annexations  thereon  will  fall 
below  the  sum  prescribed  by  statute  as  necessary  to  confer  a 
settlement,  but  if  taken  in  connection  therewith  it  will  suffice 
for  that  purpose.  In  such  cases  it  obviously  becomes  a  very 
material  incjuiry  whether  the  value  of  such  annexations  is  to  be 
included  in  the  calculation  of  the  requisite  sum  or  rejected 
therefrom.  The  cases  where  this  subject  has  been  considered 
will  be  here  referred  to. 

In  Rex  v.  Londonthorpe,^  the  pauper  rented  a  tenement  at 
the  yearly  rent  of  61.  in  which  he  resided  nearly  three  years. 
During  the  greater  part  of  that  time  he  also  rented  a  piece  of 
waste  ground  at  the  yearly  rent  of  10s.  Gd.,  upon  which  he  had 
the  privilege  of  building  a  post-wind-mill,  and  which  he  was 
to  be  at  liberty  to  remove  at  pleasure.  He  accordingly  built 
upon  the  waste  ground  a  post-wind-mill  at  an  expense  of  1201. 
constructed  upon  cross  traces  laid  upon  brick  pillars,  but  not 

8  See,  also,  59  Geo.  III.,  c.  50;  6  Geo.  IV.,  c.  57,  §  2;  1  Will.  IV.,  c. 
18,   §§   1,  2. 

The  various  statutes  on  this  subject  -nill  be  found  referred  to  in  4 
Fisher's  Com.   Law  Dig.,  p.   6767. 

0  6  Term,  377   (1795).     See  Eex  v.  Minworth,  2  East,  198   (1802). 

A  contract  for  a  standing-place  in  another's  mill  for  a  carding-machine 
(the  party's  own  property)  which  was  fastened  to  the  floor  and  roof  for 
the  purpose  of  being  worked  by  the  steam-engine  of  the  mill,  for  which 
the  party  was  to  pay  20/.  per  year,  each  to  give  the  other  three  months' 
notice  to  quit,  is  not  the  taking  of  a  tenement,  but  merely  a  contract  for 
liberty  to  stand  and  work  the  machine  in  a  room  of  the  mill,  and  therefore 
confers  no  settlement.  Sec  Eex  v.  Mcllor,  2  East,  189  (ISO'J);  Eex  v. 
Dodderhill,  8  Term,  449  (1800);  Eex  v.  Tardebigg,  1  East,  528  (1801); 
Eex  V.  Hammersmith,  8  Term,  450  (1796);  Eobinson  v.  Learoyd,  7  M.  & 
W.,  48    (1840). 

583 


•386  THE  LAW  OF  FIXTURES.  [CHAP.   XII. 

attaclied  or  aflfixod  thereto,  which  was  the  usual  mode  of  build- 
iui?  mills  of  that  nature.  He  let  the  mill  for  a  ([luirter  of  a 
year  at  the  rate  of  9/.  per  annum  and  during  this  time  resided 
in  the  tenement  of  the  rent  of  61.  per  annum.  He  afterwards 
sold  the  mill  as  a  chattel  interest,  and  it  was  removed  by  the 
purchaser  without  any  interruption  by  the  landlord;  no  rates 
were  ever  paid  or  demanded  for  the  mill,  or  the  ground  on 
which  it  stood.  The  question  was  Avhether  the  pauper  by  liv- 
ing upon  his  tenement  of  61.  a  year,  and  renting  the  piece  of 
land  at  10s.  6d.  and  afterwards  building  and  working  the  mill 
for  the  time  aforesaid  and  letting  the  same  for  a  part  of  the 
[*386]  *term  as  above  stated,  was  to  be  considered  as  holding 
101.  a  year  and  to  have  gained  a  settlement  in  respect  thereof. 
It  was  argued  in  support  of  the  proposition  that  a  settlement 
was  gained  by  the  pauper's  renting  a  tenement  of  101.  a  year, 
that  he  first  rented  61.  per  annum,  then  10s.  6d.,  then  91.  per  an- 
num, the  last  being  the  sum  for  which  the  mill  was  afterwards 
let  by  the  tenant  himself.  This,  it  was  contended,  might  be  con- 
sidered to  be  the  taking  of  a  tenement  of  101.  per  annum 
on  the  same  principle  on  which  it  had  been  held  that  the  rent- 
ing of  a  rabbit-warren,^^  or  a  land  sale  colliery, ^^  is  the  taking 
of  a  tenement,  where  in  the  one  case  the  value  of  the  rabbits, 
and  in  the  other  the  value  of  the  horses,  gins,  ropes,  and  other 
chattels  merely  for  working  the  mines  was  added  to  make  up  the 
amount  required.  But  Lord  Kenyon  in  delivering  the  judg- 
ment of  the  court  ob-served :  "This  wind-mill,  as  described  in 
the  case,  is  nothing  but  a  chattel.  And  if  in  questions  of  this 
kind  we  were  merely  to  consider  the  ability  of  the  pauper, 
without  at  the  same  time  considering  whether  he  rented  a 
tenement,  we  should  abandon  the  statute  altogether  and  the 
decisions  upon  it.  It  might  as  well  be  said  that  an  iron  malt- 
mill  would  give  a  settlement.  This  post-wind-mill  was  the  sole 
property  of  the  tenant  himself;  and  it  was  not  fixed  in  the 
ground,  but  detached  from  it.  But  in  order  to  confer  a  settle- 
ment it  should  be  so  connected  with  the  land  as,  in  legal  contem- 
plation, to  fall  within  the  description  of  a  tenement."     Grose, 

loKinver  v.  Stone,  1  Str.,  678   (1726);  Eex  v.  Piddletrenthide,  3  Term, 
772   (1790), 

"Rex  V.  North  Bedburn,  2  Conset's  Bott,  155. 

584 


CHAP.   Xn.]  POOR   RATES.  *387 

J.,  in  the  same  case  observed:  ''It  is  no  more  a  tenement  than 
a  large  coffee-mill  put  up  by  the  tenant  in  his  house.  "^  2 

The  case  of  Rex  v,  Londonthorpe,  was  followed  in  Rex  v. 
Otley.12  In  this  case  a  pauper  rented  a  wind-mill,  a  brick  cot- 
*tage,  and  a  small  garden,  at  a  rent  of  £30  per  annum,  [*387] 
for  over  six  years,  and  during  that  time  held,  occupied,  and 
actually  paid  for  the  same  the  said  sum  of  £30  per  annum,  and 
was  rated  to  and  paid  several  rates  for  the  relief  of  the  poor  in 
respect  of  the  cottage  and  garden,  and  also  of  the  mill,  at  the 
estimated  value  of  61.  per  annum.  The  cottage  and  garden 
with  the  mill  were  together  of  more  than  the  annual  value  of 
101.,  but  the  cottage  and  garden,  exclusive  of  the  mill,  were 
not  of  that  annual  value.  The  mill  was  of  wood,  of  a  circu- 
lar form  and  had  a  brick  foundation;  but  the  wood-work  was 
not  inserted  in  the  brick  foundation,  but  rested  on  it  by  its 
weight  alone.  No  part  of  the  machinery  touched  the  ground 
or  the  foundation,  and  the  mill  would  work  on  the  ground  as 
well  as  on  the  brick  foundation.  Upon  these  facts  it  was  held 
on  the  authority  of  the  preceding  case,  that  the  mill  not  being 
affixed  to  the  freehold  nor  to  anything  connected  therewith, 
was  not  parcel  of  a  tenement,  and,  therefore,  the  pauper  gained 
no  settlement. 

Whatever  may  be  thought  as  to  the  correctness  of  the  prin- 
ciple of  annexation  applied  in  these  two  cases,  they  are  very 
clearly  authorities  for  the  rule,  that  in  order  to  confer  a  settle- 
ment, the  property  by  which  the  value  of  the  tenement  is  en- 
hanced and  made  equal  to  the  annual  value  of  lOL,  must  be 
so  annexed  to  the  realty  as  to  become  a  parcel  of  the  tenement, 
or  in  other  words  it  must  be  a  fixture,  as  distinguished  from 
a  mere  personal  chattel. 

In  Rex  V.  St.  Dunston,^^  the  question  arose  under  the  Statutes 
3  &  4  W.  &  M.,  c.  11,  s.  6,  and  35  Geo.  III.,  c  101,  §  4,  herein- 
before referred  to.  In  this  case  a  landlord  demised  to  a  tenant 
a  house  and  fixtures  in  the  parish  of  St.  Dunstan  at  an  annual 

12  No  reference  is  made  by  the  court  to  the  agreement  as  to  the  removal 
of  the  mill  in  this  case,  but  the  case  seems  to  have  been  decided  on  the  sole 
ground  that  there  was  no  annexation  to  the  land.     Sec  ante,  chap  3. 

13  1  B.  &  Ad.,  161  (1830).  See,  also,  Wansbrough  v.  Maton,  4  Ad.  & 
E.,  884    (1836). 

i«4  B  &  C,  686  (1825). 

585 


*388  THE   LAW   OF   FIXTURES.  [CHAP.   XII. 

rent  of  10/. ;  and  the  tenant  occnpied  and  paid  rates  in  respect 
of  the  same;  bnt  the  house  was  rated  at  less  than  101.  per  an- 
num. The  fixtures  consisted  of  a  stove  and  grates  fixed  with 
briek-work  in  the  chimney-phices,  but  capable  of  removal  with- 
out injury  to  the  chimney-places;  and  two  cupboards  stand- 
ing on  the  ground  supported  by  hold-fasts  and  also  removable 
[*388]  *without  other  injury  to  the  wails  than  a  few  marks  of 
nails.  The  use  of  these  several  articles  was  worth  about  Gd.  per 
week.  The  Court  of  Quarter  Sessions  confirmed  the  order  of 
removal,  but  stated  their  opinion  to  be  that  if  any  deduction, 
however  small  in  amount,  was  to  be  made  in  respect  of  the 
above-mentioned  articles,  the  tenement  would  not  be  of  the 
annual  value  of  101.  The  Court  of  King's  Bench  confirmed  the 
order  of  the  Court  of  Quarter  Sessions  and  held  that  the  fixtures 
constituting  part  of  the  tenement  demised,  and  the  whole  being 
of  the  annual  value  of  10/.,  the  tenant  gained  a  settlement  by 
the  payment  of  rates, 

IV.     Qualifications  of  Electors  as  related  to  Real  Prop- 
erty Improved  by  Annexations  thereto. 

The  subject  of  this  section  seems  never  to  have  come  before 
the  courts  of  this  country  for  consideration;  and  under  the 
political  system  prevailing  in  this  country,  it  probably  never 
will.  Should  it,  however,  ever  become  a  material  subject  of 
inquiry,  it  would,  it  is  believed,  be  governed  by  the  principles 
already  laid  down  in  the  preceding  pages.  Only  one  case  on 
the  subject  has  been  found  in  the  English  reports,  and  that 
was  the  case  of  a  vote  in  the  case  of  the  county  of  Bedford.^ 
In  that  case  one  Joseph  Marshall  had  voted  for  a  wind-mill 
which  stood  in  a  common  field  in  the  parish  of  Yielding,  upon 
a  plat  of  grass  ground  large  enough  to  clear  the  sway  of  the 
wings,  inclosed  within  a  fence  put  up  by  the  voter.  It  was 
fixed  on  a  post,  upon  pattens,  in  a  foundation  of  brick-work. 

12  Luder,  Case  xii.,  p.  440   (1785). 

[Where  a  person  to  be  qualified  for  election  to  the  office  of  councillor, 
must  be  an  occupier  of  "land,"  held,  that  the  second  floor  of  a  house, 
under  bis  exclusive  control  as  tenant,  was  land.  Be  Horwitz,  26  Vict., 
500    (1901).] 

586 


CHAP,    xn.]  POOR   RATES.  *389 

Nothing  was  expressly  proved  to  show  this  plat  of  ground  to 
belong  particularly  to  the  voter;  and  nothing  on  the  other 
hand,  to  show  that  it  did  not.  The  counsel  objecting  to  the 
vote,  among  other  things,  said,  that  as  the  voter  had  expressly 
described  his  freehold  to  be  a  wind-mill,  he  could  not  have 
availed  himself  of  the  value  of  any  land  with  it,  if  he  possessed 
*any;  but  according  to  the  evidence  there  w^as  no  reason  [*389] 
to  suppose  this;  therefore,  the  question  was  simply,  whether 
this  wind-mill  was  a  freehold  estate;  which  they  contended,  it 
was  not,  but  merely  a  chattel;  that  it  did  not  follow,  from  the 
right  of  an  heir  to  take  property  by  descent,  that  such  property 
was  always  of  a  freehold  nature,  for  there  are  many  chattels 
which  go  to  an  heir,  e.  g.,  a  term  of  years  in  trust  to  attend  the 
inheritance.  Therefore  such  descent  is  not  alone  a  proof  of 
freehold,  if  in  this  case  the  voter  could  prove  the  descent  as  to 
the  mill,  which,  however,  is  not  the  case.  It  was  also  insisted 
that  the  case  of  a  wind-mill  was  not  distinguishable  from  the 
case  of  the  fire-engine  in  Lawton  v.  La^\•ton,  from  the  cider- 
mill  in  the  case  before  Lord  Chief  Baron  Comyns;  and  that 
the  case  of  the  salt-pans  in  La\vi;on  v.  Salmon  did  not  militate 
against  the  argument  deducible  from  those  cases. 

On  the  other  hand  it  was  insisted  that  according  to  the  evi- 
dence of  the  case,  the  voter  must  be  presumed  to  have  a  right 
to  the  soil  on  which  his  mill  stood;  and  therefore  no  objection 
could  arise  from  that  quarter.  It  was  also  insisted  that  in  the 
cases  on  which  the  opposite  argument  was  founded,  (if  they 
were  in  point  to  the  wind-mill)  the  nature  of  the  subject  was 
not  considered  intrinsically,  but  always  with  relation  to  the 
persons  between  whom  the  question  had  arisen;  the  modern 
determinations,  founded  on  principles  of  public  convenience, 
favoring  the  executors  of  such  persons  against  the  successor 
to  the  land.  And  that  upon  general  principles,  considered  as  a 
building  fixed  in  the  soil,  the  mill  must  be  accounted  a  part 
of  the  freehold. 

The  vote  in  respect  of  this  wind-mill  was  held  to  be  good 
by  the  committee,  upon  the  principle  doubtless  (for  no  rea- 
sons are  assigned  for  the  decision),  that  by  reason  of  its  annex- 
ation it  was  to  be  considered  as  land ;  and  that,  if  by  its  annex- 
ation the  value  of  the  land  was  enhanced  to  the  prescribed 
amount,  the  right  of  voting  was  conferred. 

587 


[*390]  CHAPTER  XIII. 

LEGAL  AND  EQUITABLE  REMEDIES  RESPECTING 

FIXTURES. 

I.    Of  the  Action  of  Waste,  and  Case  in  the  Nature  of 

Waste. 

Many  of  the  early  eases  respecting  the  right  to  fixtures  arose 
in  the  form  of  an  inquiry  whether  their  severance  amounted 
to  an  act  of  waste  ;^  and,  with  respect  to  the  remedy  therefor, 
as  the  old  form  of  proceeding  by  writ  of  waste  (though  now 
obsolete  in  most  of  the  United  States  as  well  as  in  England), 
is  the  foundation  of  the  modern  form  of  action  therefor,  it  is 
deemed  advisable  to  refer  briefly  to  some  particulars  relating 
thereto  with  references  to  authorities  in  which  a  more  full  dis- 
cussion of  the  subject  may  be  found,  if  desired. 

At  the  common  law  there  were  two  remedies  for  waste,  viz: 
by  writs  of  prohibition,  or  of  estrepement  (to  be  hereafter 
noticed),  for  the  prevention  of  waste,  and  a  writ  of  waste  for 
waste  actually  done.  Lord  Coke^  thus  states  the  rule  at  com- 
mon law:  "At  the  common  law  waste  was  punishable  in  three 
persons,  viz:  tenant  in  dower,  tenant  by  the  curtesie,  and  the 
guardian, 2  but  not  against  tenant  for  life,  or  tenant  for  yeares  f 
and  the  reason  of  the  diversity  was,  for  that  the  law  created 
their  estates  and  interests,  and  therefore  the  law  gave  against 
[*391]  *them  remedy;  but  tenant  for  life,  and  for  yeares  came 
in  by  demise  and  lease  of  the  owner  of  the  land,  etc.,  and  there- 

1  As  to  \Nhat  constitutes  waste  and  the  different  kinds  of  waste,  see 
Greenl.  Cru.  Dig.,  tit.  3,  ch.  2;  1  Wash.  Eeal  Prop.,  107  et  seq.;  Waples  v. 
Waples,  2  Harr.,  281   (1837). 

2  2  Inst.,  299,  300.  See,  also,  12  H.  4,  3;  21  H.  6,  28;  Doct.  &  Stud., 
lib.  2,  cap.  1;  Eegist.,  72;  1  Inst.,  §  67;  Co.  Lit.,  53  b,  54  a. 

3  In  chivalry. 

*See,  however,  2  Reeve's  Hist.  Eng.  Law,  73,  184;  4  Kent  Com.,  80. 
[See,  ante,  p.  *82.] 

588 


CHAP.    Xm.]  THE   ACTION   OF   WASTE.  *392 

fore  he  might  in  his  demise  provide  against  the  doing  of  waste 
by  his  lessee,  and  if  he  did  not,  it  was  his  negligence  and 
default." 

For  waste  actually  done  the  tenant  in  dower,  and  likewise  the 
tenant  in  curtesy  were  at  common  law  subject  to  two  pun- 
ishments, viz:  to  yield  damages  to  the  value  of  the  waste,  and 
a  keeper  or  curate  to  be  appointed  over  them,  to  prevent  any 
future  waste  being  done;  and  the  guardian  in  chivalry  as  a 
punishment  lost  the  custody  of  his  ward,  was  obliged  to  pay 
the  value  of  the  waste,  and  was  subject  to  be  fined  by  the  king 
for  his  breach  of  the  trust  reposed  in  him.^ 

The  action  lay  against  the  tenant  in  dower,  or  by  the  cur- 
tesy, notwithstanding  they  had  assigned  over  their  estates;  but 
it  did  not  at  common  law  lie  against  the  assignee,  even  for  waste 
done  after  the  assignment.^  So,  if  the  heir  granted  away  the 
reversion  and  the  tenant  attorned,  the  action  failed  at  the  com- 
mon law  (though  it  lay  under  the  Statute  of  Gloucester,  infra) 
the  new  estate  being  created  by  the  act  of  the  parties.'^ 

The  doctrine  of  the  common  law,  that  where  lands  were 
granted  to  a  person  for  life,  he  was  not  liable  to  an  action  for 
waste  unless  restrained  by  express  words  in  the  conveyance 
from  the  commission  thereof,  being  found  very  inconvenient, 
as  tenants  took  advantage  of  the  ignorance  of  their  landlords 
and  committed  waste  with  impunity,  the  defect  was  sought  to 
be  remedied  by  the  Statutes  of  Marlebridge,  52  Hen.  III.,  c.  23, 
{a^ino,  1267),  and  Gloucester,  6  Edw.  I,  c.  5  {anno,  1278), 
by  which  latter  Statute  an  action  of  waste  was  given  "against 
him  that  holdeth  by  the  law  of  England,  or  otherwise  for  term 
of  life,  or  for  term  of  years,  or  a  woman  in  dower,"  and  it  was 
also  provided  that  "he  which  shall  be  attainted  of  waste  shall 
lose  the  thing  which  he  hath  wasted,  and  moreover  shall  rec- 
♦ompense  thrice^  so  much  as  the  waste  shall  be  taxed    [*3921 

8  2  Inst.,  300;  10  H.  3,  Waste,  138;  20  H.  3,  ib.,  139;  34  E.  3,  ib.,  146. 

0  2  Inst.,  300,  301;  Temps.  E.  1,  Waste,  132;  30  E.  3,  16;  38  E.  3,  23; 
40  E.  3,  33;  11  H.  4,  18;  Doct.  &  Stud.,  1.  2,  ea.  1 ;  F.  N.  B.,  56. 

T2  Inst.,  300,  301;   1  Greenl,  Cru.  Dig.,  tit.  3,  eh.  2,  §   31. 

8  By  the  Statute  of  Marlebridge  the  actual  damages  were  recoverable, 
and  the  party  committing  the  waste  was  liable  to  "be  punished  liy 
amerciament  grievously."  Hcc  the  Statutes  ante,  p.  "SS.  See  generally 
as  to  these  Statutes,  2  Inst.,  299,  et  seq.;  Co.  Lit.,  53  b,  et  seq.;  3  Bl. 

589 


•393  THE   LAW   OF   FIXTURES.  [CIIAP,    XIII. 

at."  In  the  constrnction  of  this  Statute,  tenants  from  year  to 
year,  and  also  tenants  for  a  part  of  a  year  were  held  punishable 
for  waste.-'  This  action  depends  npon  the  existence  of  privity 
between  the  parties;  i"  so  that  if  after  waste  done  the  rever- 
sioner grant  over  his  reversion,  though  he  take  back  the  whole 
estate  again,  yet  is  the  waste  dispunishable.'^  And  although,  as 
observed  by  Lord  Coke,  the  assignee  of  the  tenant  by  the  cur- 
tesy, or  in  dower,  is  within  the  letter  of  this  law,  for  he  holds 
in  some  manner  for  life,  yet  no  action  of  waste  shall  be  brought 
by  the  heir  against  the  assignee,  but  only  against  the  tenant 
by  the  curtesy  or  in  dower;  but  if  the  heir  grant  away  the 
reversion,  and  the  assignee  attorn,  there  the  grantee  by  this 
Statute  shall  have  an  action  of  waste  against  the  assignee,  and 
the  plaintift'  must  declare  upon  the  Statute,  there  being  in  that 
case  no  action  of  waste  at  the  common  law.'^ 

No  person  Avas  entitled  to  an  action  of  waste,  unless  he  had 
the  immediate  estate  of  inheritance,  and  if  there  was  an  inter- 
vening vested  estate  of  freehold,  during  its  continuance  the 
action  of  waste  was  suspended.' ^ 

The  remedy  by  writ  of  waste  was  in  England  abolished  after 
[*393]  *June  1st,  1835,  by  the  statute  3  &  4  Will.  IV.,  c.  27,  s. 
36,  37.1^    In  the  United  States  the  subject  of  waste  and  the 

Com.,  225;  1  Cru.  Dig.,  tit.  3,  ch.  2,  §  26,  et  seq.;  1  Wash.  Real  Prop., 
118.  It  is  to  be  observed  that  the  action  of  waste  was  in  its  nature  a 
mixed  action;  real  because  on  a  judgment  against  the  defendant  the  plain- 
tiff recovered  the  thing  wasted,  and  personal  because  recovery  was  had 
of  treble  damages.     3  Bl.  Com.,  228. 

9  2  Inst.,  302;  Co.  Lit.,  §  67,  52*  b. 

See,  however,  Lloyd  v.  Eosbee,  2  Camp.  N.  P.,  453  (1810),  where  Lord 
Ellenborough  refused  to  give  a  similar  construction  to  the  Stat.  4,  G.  2, 
ch.  28,  which  specified  tenants  for  life,  lives,  or  years. 

10  Co.  Lit.,  53  b;  2  Inst.,  301;  Foot  v.  Dickinson,  2  Met.,  611   (1841). 
"Co.  Lit.,  53  b. 

12  2  Inst.,  301. 

13  Co.  Lit.,  53  b,  218  b,  note  122;  Com.  Dig.,  Waste,  C  2,  C  3;  Waples  v. 
Waples,  2  Harr.,  281    (1837). 

1*  It  had  already  fallen  into  disuse,  though  instances  where  the  old 
form  of  procedure  had  been  recognized  and  adopted  are  to  be  found  in 
the  modern  cases  of  Redfern  v.  Smith,  2  Bing.,  262  (1824),  where  it  was 
held  that  a  verdict  in  a  writ  of  waste  upon  the  Statute  of  Gloucester, 
simply  finding  the  plaintiff 's  damages  and  not  the  place  wasted,  would  not 
be  sustained;  and  The  Keepers  of  Harrow  School  v.  Alderton,  2  B.  &  P., 

590 


CHAP.    XIII.]  THE  ACTION   OF   WASTE.  *394 

remedies  therefor  are  variously  regulated  by  statute,  the  con- 
sideration of  which  in  detail  would  be  foreign  to  the  purposes 
of  this  Avork.^^  The  ancient  remedies  for  waste  by  writ  of 
estrepement,  and  writ  of  waste  at  common  law  are  declared  by 
Chiancellor  Kent  ^  **  to  be  essentially  obsolete,  though  in  some 
instances  they  have  been  adopted  in  practice  in  some  of  the 
states.^  ^ 

The  remedy  now  generally  employed  in  cases  where  for- 
merly an  action  of  waste  was  the  appropriate  action,  and  which 
has  superseded  the  action  of  waste,  is  an  action  on  the  case  in 
the  nature  of  waste,  which  has  been  found  to  be  much  more 
convenient  and  better  adapted  for  the  recovery  of  mere  dam- 
ages than  the  action  of  waste  in  the  tenuit.  This  action,  as 
has  already  been  observed,  has  for  its  origin  the  ancient  form 
of  procedure  already  referred  to.  It  is,  however,  applicable  to 
many  cases  where  an  action  of  waste  did  not  lie.^^  It  may 
*be  brought  by  him  in  reversion  or  remainder  for  life    [*394] 

86  (1800),  where  in  an  action  of  waste  the  jury  having  given  three 
farthings  damages  only,  the  court  gave  the  defendant  leave  to  enter  up 
judgment  for  himself;  on  the  principle,  evidently,  that  de  minimis  7ion 
curat  lex.  See  3  Bl.  Com.,  228;  Barry  v,  Barry,  1  Jac.  &  Walk.,  653 
(1820).     [Stevens  v.  Eose,  69  Mich.,  259,  269   (1888).] 

For  a  more  full  consideration  of  the  subject  of  the  action  of  waste,  see, 
generally,  Co.  Lit.,  53  a;  2  Inst.,  145,  299,  et  seq.;  Fitz.  Nat.  Brev.,  Writ 
of  Waste;  Com.  Dig.,  Waste;  3  Bl.  Com.,  223;  2  Id.,  281;  Bull.  N.  P., 
119  a;  1  Cru.  Dig.,  tit.  3,  c.  2;  Greene  v.  Cole,  2  Saund.  (Wms.'  od.),  234, 
252  (1681),  et  seq.,  and  notes;  2  Wms.'  Notes  to  Saunders'  Reports 
(Lond.  ed.,  1871),  p.  644  et  seq.;  and  the  authorities  hereinbefore  cited. 

15  See,  generally,  1  Greenl.  Cru.  Dig.,  tit.  3,  ch.  2,  §  26  et  seq.  &  notes; 
4  Kent  Com.,  76  et  seq.  &  notes;  1  Wash.  Real  Prop.,  118  et  seq.  & 
notes. 

16  4  Kent  Com.,  77,  81. 

17  See  4  Kent  Com.,  77  et  seq.,  notes;  Greenly  v.  TTall,  3  ITarring.,  9 
(1839);  Waples  v.  Waples,  2  Id.,  281  (1837);  Loomis  v.  Wilbur,  5  Mason, 
13  (1827);  Sackett  v,  Sackett,  8  Pick.,  309  (1829);  Smith  v.  Follansbee, 
13  Me.,  273  (18.36);  Crocker  v.  Fox,  1  Root,  323  (1791);  Rose  v.  Hays 
(1791),  cited  in  Crocker  v.  Fox  (supra);  Jones  v.  Whitehead,  1  Pars.  Sel. 
Cas.,  304   (1847). 

18  See  the  advantages  of  this  form  of  action  compared  with  the  action 
of  waste  in  Greene  v.  Cole,  2  Saund.  (Wms.'  ed.),  252  (1861),  note  7; 
2  Wms.'  notes  to  Saunders'  Rnpts.  (Lond.  ed.,  1871),  p.  644  et  seq. 
[Dickinson  v.  Baltimore,  48   Md.,  58.3,   589    (1878).] 

591 


*394  THE  LAW  OF  FIXTURES.  [CIIAP.    XIII. 

or  years  as  well  as  in  fee  or  in  tail.^''  But  it  can  only  be  brought 
for  an  injury  done  to  a  reversionary  interest,  and  hence  does 
not  lie  by  a  tenant  for  years.'-^*^  It  may,  however,  be  sustained 
by  a  reversioner  against  a  stranger  for  an  injury  actually  com- 
mitted to  the  reversionary  estate  while  in  the  possession  and 
occupation  of  a  tenant,^!  though  waste  may  not.  The  interest 
of  the  reversioner  must,  however,  be  a  vested  interest  at  the 
period  when  the  waste  was  committed,  a  contingent  interest 
not  sufficing  to  support  the  action;  and  therefore  where,  A. 
and  his  wife  being  seized  of  a  messuage  for  their  joint  lives 
and  the  life  of  the  survivor  of  them,  all  the  estate  and  interest 
of  A,  became  vested  in  the  defendant  who  permitted  waste 
during  A.'s  lifetime,  it  was  held  that  the  wife  who  survived 
her  husband  could  not  maintain  an  action  on  the  case  against 
the  defendant  in  respect  of  such  waste.22 

It  will  be  perceived  from  what  goes  before  that  the  action 
upon  the  case  in  the  nature  of  waste  is  an  appropriate  form  of 
action  to  be  brought  by  one  in  reversion  or  remainder  to  try 

19  Note  7  to  Greene  v.  Cole  (supra)  ;  McLaughlin  v.  Long,  5  Har.  & 
John.,  113  (1820);  West  v.  Treude,  Cro.  Car.,  187  (1630);  s.  C,  Jones, 
224.  See,  however,  dictuvi  in  Peterson  v.  Clark,  15  John,,  205  (1818). 
[See  Dickinson  v.  Baltimore,  48   Md.,  583,   589    (1878).] 

[Action  on  the  case  will  not  lie  for  permissive  waste.  Smith  v.  Mat- 
tingly,  96  Ky.,  228,  234  (1894).] 

The  plaintiff  is  also  entitled  to  costs  in  this  action,  which  he  cannot 
have  in  an  action  of  waste.     Note  7   (siqira). 

20  McLaughlin  v.  Long,  5  Har.  &  John.,  113  (1820).  See,  also,  Page  v. 
Davidson,   22   111.,   112    (1859). 

21  Chase  v.  Hazelton,  7  N.  H.,  171  (1834) ;  Forbes  v.  Williams,  1  Jones's 
Law,  393  (1854);  1  Chitty  Plead.,  157,  158;  1  Wash.  Real  Prop.,  119. 
See,  also,  Brown  v.  Bridges,  31  Iowa,  145  (1870).  See,  however,  dictum 
of  Patteson,  J.,  in  Bacon  v.  Smith,  1  Q.  B.,  345  (1841),  who,  citing  Co. 
Lit.,  53  b,  expressed  the  opinion  that  this  action  also  "consisted  in 
privity";  Foot  v.  Dickinson,  2  Met.,  611  (1841),  holding  the  same  point. 
[Consolidated  Coal  Co.  v.  Savitz,  57  111.  App.,  659  (1894)  ;  Torrey  v.  Bur- 
nett, 38  N.  J.  Law,  457,  458  (1875)  ;  see,  also,  Dickinson  v.  Baltimore, 
48  Md.,  583,  589   (1875).] 

22  Bacon  v.  Smith,  1  Q.  B.,  345  (1841)  ;  s.  c,  4  P.  &  D.,  651.  See,  also, 
Peterson  v.  Clark,  15  John.,  205  (1818),  cited  again  post  in  this  section. 

[Alienation  of  the  property  by  the  reversioner  does  not  affect  his  right 
to  recover  for  waste  already  committed.  Action  on  the  case  in  the  nature 
of  waste  is  an  equitable  action,  and  not  to  be  discountenanced  by  any  tech- 
nical  consideration.     Dickinson   v.   Baltimore,   48   Md.,   583    (1878).] 

592 


CHAP,   Xni.]  THE  ACTION  OF  WASTE.  *395 

the  question  whether  the  removal  of  articles  annexed  to  the 
freehold  is  rightful,  or  whether  the  thing  annexed  has  become 
an  irremovable  fixture  and  parcel  of  the  reversionary  estate. 
It  may  be  brought  in  such  a  case  by  the  reversioner  against 
*a  tenant  in  possession  whether  for  life,  for  years,  at  [*395] 
will  or  at  sufferance.^^  And  where  a  lessee  for  years  assigned  by 
way  of  mortgage  his  lease  and  all  his  estate  and  interest  in  the 
premises,  and  continued  in  the  occupation  of  the  premises  till  his 
bankruptcy,  it  was  held  that  the  mortgagee  might  declare  in 
case  as  reversioner  against  the  assignee  in  bankruptcy  of  the 
tenant  for  the  removal  of  the  fixtures  from  the  premises  where- 
by they  were  dilapidated  and  injured.-^     But  in  those  States 

23  West  V.  Treude,  Cro.  Car.,  187    (1630);   s.  c,  Jones,  224;   Hitchman 
V.  Walton,  4  M.  &  W.,  409   (1838). 

24  Hitchman  v.  Walton,  4  M.  &  W.,  409  (1838).  Lord  Abinger,  C.  B., 
in  delivering  his  opinion  in  this  ease  said :  ' '  The  defense  set  up  by  the 
first  plea  is,  that  Pett  was  not  the  tenant  of  the  plaintiff.  Now,  if  a 
mortgagor  be  not  tenant  to  the  mortgagee,  in  what  relation  does  he 
stand?  He  is  not  a  trespasser;  he  is  not  a  servant,  because  the  mortgagee 
is  not  in  possession ;  the  ordinary  terms  known  to  the  law  are,  a  mortgagee 
in  possession  and  out  of  possession.  Then  lodk  at  the  very  terms  and 
understanding  of  a  mortgage.  It  is  either  made  so  as  to  vest  the  absolute 
interest  in  the  mortgagee,  without  any  proviso  for  a  future  defeasance 
on  non-payment  of  the  mortgage  money;  if  so,  the  mortgagee  becomes 
the  absolute  legal  owner,  with  the  right  to  turn  out  the  mortgagor  at 
once;  but  if  he  chooses  to  allow  him  to  remain  in  possession,  in  what 
character  does  he  stand  but  that  of  a  tenant,  since  it  is  clear  he  is 
neither  a  trespasser  nor  a  servant?  On  the  other  hand,  if  there  be  a 
stipulation  that  he  shall  be  allowed  to  remain  in  possession  for  a  time, 
by  the  very  terms  of  the  deed  he  is  a  tenant  for  that  time,  and  is  in 
possession  for  a  term;  if  he  continues  in  possession,  and  holds  over,  he 
continues  on  the  same  terms  as  during  that  time.  Then  how  is  the  mort- 
gagee to  declare  for  an  injury  to  his  ownership?  He  must  either  declare 
as  reversioner,  as  it  was  held  in  Patridge  v.  Bere  [5  Barn.  &  Aid.,  604 
(1822)]  that  he  might,  or  else  he  must  set  out  all  the  special  circum- 
stances at  length :  the  former  is  by  much  the  more  convenient  mode.  Mr. 
Piatt  says,  that  in  order  to  constitute  a  reversion  there  must  be  a  por- 
tion of  the  estate  carved  out,  on  which  the  reversion  shall  be  incident ; 
the  answer  is  that  the  portion  of  the  estate  carved  out  is  the  portion  of 
time  during  which  the  mortgagor  is  allowed  to  remain  in  possession,  and 
the  mortgagee  must  determine  the  will  before  ho  can  turn  him  out.  No 
doubt  he  may  maintain  ejectment  without  any  previous  demand  of  pos- 
eesHJon;  but  the  cjectmont  is  maintained  on  the  fiftion  that  tho  lessor  is 
admitted    by    the   consent   rule,    to    have   entered    into    possession,   and   to 

88  593 


*396  THE   LAW   OP  FIXTURES.  [CIIAP,    XIII. 

[*39GJ  *where  a  mortg:ag:o  is  hold  to  be  only  a  security  and  not 
a  conveyance  of  the  title,  a  niortgajioe  cannot  maintain  an  action 
on  the  case  in  the  nature  of  waste  ap:ainst  the  mortgagor  (at 
least  not  till  after  a  forfeiture  of  the  mortgage),  his  interest  in 
the  land  being  only  contingent  and  liable  to  be  defeated  by  pay- 
ment of  the  money  secured  by  the  mortgage.^^  In  such  cases, 
however,  an  action  on  the  case  will  lie  by  the  mortgagee  or  his 
assignee  against  a  purchaser  of  the  equity  of  redemption  for 
acts  of  waste  (such  as  removing  buildings,  fences,  timber,  etc.) 
committed  with  a  knowledge  that  the  value  of  the  security  will 
be  thereby  impaired.^"     But  the  action  in  such  a  case  is  not 

have  been  afterwards  ousted.  I  think,  therefore,  that  the  first  issue 
was  rightly  found  for  the  plaintiff ;  and  if  so,  it  is  clear  that  upon  that 
issue  he  had  a  right  to  recover  the  amount  of  any  damage  done  to  the 
freehold  by  the  improper  removal  of  the  fixtures  in  question. ' ' 

In  an  action  of  tort,  in  Massachusetts,  where  a  mortgage  is  considered 
a  conveyance  of  the  title,  the  declaration  alleged  that  plaintiff  was  third 
mortgagee  of  a  house;  that  defendant  forcibly  entered  and  removed  fix- 
tures, and  that  by  reason  thereof  plaintiff's  security  was  impaired.  At  the 
trial  it  appeared  that  at  the  time  of  the  alleged  tort  plaintiff  was  out  of 
possession,  and  had  not  the  right  of  possession ;  and,  there  having  been 
no  breach  of  the  condition  of  his  mortgage,  that  since  the  alleged  tort 
he  had  bought  in  the  second  mortgage,  entered  to  foreclose  and  sold 
the  property  under  the  power  of  sale  therein  contained,  buying  it  him- 
self; and  it  did  not  appear  that  the  first  mortgagee,  in  whom  the  legal  title 
was,  had  ever  made  any  demand  on  the  defendant  or  authorized  him  to 
resist  the  plaintiff's  suit.  Held,  that  the  plaintiff  could  recover  the  full 
amount  of  the  damages  caused  to  the  estate  by  the  removal  of  the 
fixtures,  without  regard  to  the  sufficiency  of  his  security,  and  although  the 
assignee  in  bankruptcy  of  the  mortgagor  had  sued  defendant  for  the 
same  acts.  Gooding  v.  Shea,  103  Mass.,  360  (1869).  [Byrom  v.  Chapiu, 
113  Mass.,  308,   311    (1873).] 

25  Peterson  v.  Clark,  15  John.,  205  (1818).  See,  also.  Van  Pelt  v.  Mc- 
Graw,  4  N.  Y.,  112  (1850),  per  Pratt,  J.  [See  Angier  v.  Agnew,  98  Pa. 
St.,  587,  591   (1881).] 

26  Van  Pelt  v.  McGraw,  4  N.  Y.,  110  (1850),  affirming  s.  c,  3  Barb., 
347;  Robinson  v.  Russell,  24  Cal.,  467  (1864).  [Arnold  v.  Broad,  15 
Colo.  App.,  389  (1900),  timber;  see,  also,  Tate  v.  Field,  57  N.  J.  Eq., 
53  (1898);  57  N.  J.  Eq.,  632  (1899);  E.  H.  Ogden  Lumber  Co.  v.  Busse, 
92  App.  Div.,  143  (N.  Y.,  1904);  Edler  v.  Hasche,  67  Wis.,  653,  661 
(1887).] 

[The  action  lies   against   trespassers.     Jones  v.   Costigan,   12   Wis.,   677 
(I860).] 
[Case  in  the  nature  of  waste  can  be  brought  by  a  mortgagee  against 

594 


CHAP.   XUI.]  THE  ACTION   OF   WASTE.  *397 

based  upon  the  assumption  that  the  plaintiff's  land  has  been 
injured,^"  but  that  his  mortgage  security  has  been  impaired. 
*And  his  damages,  therefore,  will  be  limited  to  the  [*397] 
amount  of  injury  to  the  mortgage,  however  great  the  injury  to 
the  land  may  be.  In  such  a  case  it  is  of  no  consequence  whether 
the  injury  occurred  before  or  after  the  forfeiture  of  the  mort- 

a  stranger  who  has  purchased  from  a  tenant  and  removed  machinery,  etc., 
a  portion  of  a  mill.     Patterson  v.  Cunliffe,  11  Phila.,  564   (1875).] 

See,  also.  Smith  v.  Altick,  24  Ohio  St.,  369  (1873)  ;  Koberts  v.  Dauphin 
Deposite  Bank,  19  Pa.  St.,  71  (1852),  where  the  action  was  by  the  second 
mortgagee;  Allison  v.  McCune,  15  Ohio,  726  (1846),  where  the  action 
was  by  mortgagee  against  an  execution  creditor  of  mortgagor  levying  on 
and  removing  fixtures  from  the  mortgaged  premises.  See,  also,  the  cases 
cited  in  the  succeeding  notes. 

[The  right  of  a  mortgagee  of  realty  to  maintain  an  action  on  the 
case  for  damages  done  to  the  realty  by  the  removal  pf  fixtures  rests  upon 
the  principle  that  the  mortgage  is  a  security  which  has  been  impaired, 
and  such  action  can  be  brought  by  other  mortgagees  than  the  first. 
Where  an  action  is  brought  by  a  second  mortgagee,  the  rights  of  the 
earlier  mortgagee  can  be  protected  by  payment  of  the  money  into  court, 
and  the  defendant  may  obtain  indemnity  against  any  subsequent  suit 
by  the  earlier  mortgagee,  by  the  action  of  the  court  into  which  the  money 
is  paid;  if  actions  be  pending  at  the  same  time  by  the  two  mortgagees, 
the  court  can  so  control  the  litigation  that  no  injustice  will  be  done. 
Jackson  ads.  Turrell,  39  N.  J.  Law,  329  (1877).] 

2T  In  an  action  upon  the  case  by  the  remainderman  for  waste  by  tenant 
for  life  in  removing  buildings,  part  of  the  realty,  the  measure  of  dam- 
ages is:  "How  much  was  the  inheritance  injured  by  their  destruction?" 
McCullough  V.  Irvine,  13  Pa.  St.,  438  (1850).  See,  also  Hosking  v. 
Phillips,  3  Exch.,  168  (1848);  Bubb  v.  Yelverton,  L.  E.,  10  Eq.,  465 
(1870).  [Lavenson  v.  Standard  Soap  Co.,  80  Gal.,  245,  247  (1889).  See, 
also,  E.  H.  Ogden  Lumber  Co.  v.  Busse,  92  App.  Div.,  143  (N.  Y.,  1904).] 

[The  rule  adopted  in  some  states,  to  consider  a  mortgage  of  land  as 
security,  rather  than  deeming  the  mortgagee  as  the  legal  owner  of  the 
fee,  is  approved  in  Jackson  ads.  Turrell,  39  N.  J.  Law,  329,  334  (1877), 
as  it  obviates  some  technical  objections  as  well  as  some  practical  difficul- 
ties, and  enables  courts  of  law  to  do  justice  by  giving  to  each  mortgagee 
injured  by  a  removal  of  fixtures,  a  remedy  in  damages  limited  to  the 
amount  of  injury  received,  however  great  the  injury  to  the  land  may  be.] 

[It  is  no  reason  to  include  the  personalty  vvitliin  the  lien  of  the  mort- 
gage, because  a  possible  pnrdiasor  of  the  works  would  pay  more  for 
both  factory  and  machinos  if  they  were  soM  at  one  bid  than  if  soI<l  sep- 
arately. Knickerbocker  Trust  Co.  v.  Penn  Cordage  Co.,  62  N.  J.  Eq.,  624, 
643   (1901).] 

595 


•397  THE   LAW   OF   FIXTURES.  [CHAP.    XIII. 

gage.-**  Such  inipairnieut  of  the  security  must  be  averred  in 
the  deehi ration  and  proved  upon  the  trial,  or  the  action  cannot 
be  maintained.--'  The  principle  of  these  cases  is  that  without  a 
fraudulent  intention  on  the  part  of  the  defendant  to  injure  the 
plaintiil',  the  action  will  not  lie;  ^"  and  it  is  not  enough  to  prove 
that  the  act  done  was  one  of  negligence  and  inattention.^^  But 
it  is  not  necessary  in  order  to  sustain  the  action  that  the  plain- 
tiff should  prove  that  the  primary  motive  of  the  defendant 
was  to  cheat  the  plaintiff.  If  the  defendant  knew  that  by 
removing  the  timber,  or  other  annexation,  the  value  of  the 
plaintiff' 's  mortgage  as  a  security  would  be  impaired,  he  would 
be  legally  chargeable  with  a  design  to  effect  that  object,  though 
his  leading  motive  may  have  been  his  own  gain.  The  neces- 
sary consequence  being  a  fraud,  the  actor  is  legally  chargeable 
with  a  design  to  effect  that  result.^^  The  rules  above  laid  down 
apply  also  to  the  Qase  of  judgment  liens  and  other  mere  secu- 
rities upon  land.32 

In  those  states  where  a  mortgage  is  considered  a  conveyance 

28  Van  Pelt  v.  McGraw   (supra),  per  Pratt,  J, 

[A  mortgagee  who  has  commenced  foreclosure  proceedings,  and  ob- 
tained a  decree  of  sale,  is,  until  sale  under  the  decree,  as  much  a  lien- 
holder  as  before,  and  entitled  to  maintain  a  suit  for  the  impairment  of  his 
security  caused  by  the  removal  of  fixtures  from  the  land  between  the 
date  of  the  decree  and  of  the  sale.  Jackson  ads.  Turrell,  39  N.  J.  Law, 
329,  335   (1877).] 

29  Lane  v.  Hitchcock,  14  John.,  213    (1817). 

30  Yates  v,  Joyce,  11  John.,  136  (1814);  Lane  v.  Hitchcock,  14  Id.,  213 
(1817);  Gardner  v.  Heartt,  3  Den.,  234  (1846);  Van  Pelt  v.  McGraw, 
4  N.  Y.,  110   (1850). 

31  Gardner  v.  Heartt    (supra). 

32  Van  Pelt  v.  McGraw,  4  N.  Y.,  110  (1850).  [Jackson  ads.  Turrell, 
39  N.  J.  Law,  329,  331  (1877).  Where  the  mortgage  security  is  im- 
paired by  the  removal  of  fixtures  from  the  land,  it  is  not  necessary  to  show 
the  insolvency  of  the  mortgagor.  The  mortgagee  is  not  bound  to  exhaust 
his  personal  security  before  resorting  to  the  substantial  security  upon 
the  strength  of  which  he  loaned  his  money.  Moreover,  to  prove  the  debtor 
insolvent  may  be  very  difficult,  or  impossible,  and  lapse  of  time  may 
destroy  his  remedy  against  the  spoiler  before  the  maturity  of  the  debt 
when  the  ability  of  the  mortgagor  is  to  be  tested.     Id.] 

33  Yates  v.  Joyce,  11  John.,  136  (1814). 

596 


CHAP.   XIII.]  THE  ACTION  OF  WASTE.  *398 

of  the  title  to  the  mortgagee,  the  action  lies  irrespective  of  the 
question  whether  the  mortgage  security  is  impaired  or  not.^^ 

The  action  on  the  case  in  the  nature  of  waste  is  inappli- 
cable to  cases  where  an  executor  claims  the  right  to  remove 
articles  annexed  to  the  realty  by  his  testator,  whose  interest  in 
the  land  is  determined  by  his  death^  such  an  action  (as  we 
have  seen)  being  maintainable  only  by  one  having  an  interest 
*in  reversion  or  remainder.^^  Nor,  except  where  the  [*398] 
rule  has  been  changed  by  statute,^^  does  case  in  the  nature  of 
waste  lie  against  the  personal  representative  for  waste  commit- 
ted by  his  testator  or  intestate  during  his  lifetime;  in  such  a 
ease  the  action  being  in  form  ex  delicto  the  maxim  is  applied 
that,  actio  personalis  moritur  cum  persona.^"^  But  the  executors 
or  administrators  of  a  tenant  for  years  are  punishable  for 
waste  done  while  they  are  in  possession.^s  But  where  by  the 
commission  of  the  waste  by  the  testator,  property  is  acquired 
which  benefits  the  testator,  there  an  action  for  the  value  of  the 
property  wnll  survive  against  the  executor,  as  for  instance, 
the  executor  will  not  be  chargeable  for  the  injury  done  by  his 
testator  in  cutting  down  another  man's  trees,  but  for  the  benefit 
arising  to  his  testator  from  the  value  or  sale  of  the  trees  he 
will.-^^  The  form  of  action,  however,  in  such  a  case  is  not  that 
of  case  in  the  nature  of  waste.^'^ 

Where  the  lessee  even  covenants  not  to  do  waste,  the  lessor 
has  his  election  to  bring  either  an  action  on  the  case  in  the 

84  See  Gooding  v.  Shea,  103  Mass.,  360  (1869),  and  Hitehman  v.  Walton, 
4  M.  &  W.,  409  (1838),  cited   {ante). 

85  See  Page  v.  Davison,  22  111.,  112  (1859)  ;  also  Bacon  v.  Smith,  cited 
{supra).     See  Stat.  3  &  4,  W.  IV.,  c.  42,  §  2. 

30  See  1  Wash.  Real  Prop.,  119  and  notes;  and  consult  the  statutes  of 
the  several  states. 

87  See  Broom's  Leg.  Max.,  909;  2  Inst.,  302;  1  Cru.  Dig.,  tit.  8.  eh.  2, 
§  11;  Vin.  Abr.,  Waste,  S  2;  Bro.  Abr.,  Waste,  pi.  138. 

38  1  Cm.  Dig.,  tit.  8,  ch.  2,  §  11;  2  Inst.,  302;  Powell  v.  Reese,  7  Ad.  & 
E.,  426   (1837);   Vin.  Abr.,  Waste,  S  2. 

30  See  Hambly  v.  Trott,  1  Cowp.,  370  (1776),  per  Lord  Mansfield; 
Powell  V.  Reese,    {supra);   Dick.  215,  also  next  note. 

<"  See  cases  cited  in  next  note,  supra;  Bishop  of  Winchester  v.  Knight, 
1  P.  Wms.,  403  (1717),  which  was  a  bill  in  equity  against  the  executor 
and  heir  for  an  account  of  ore  dug  by  the  testator. 

597 


*399  THE  LAW  OP  FIXTURES.  [CHAP.  Xlll. 

nature  of  waste,  or  of  covenant  against  the  lessee  for  the  waste 
done  by  him  during  the  term."*^ 

[*399]     *II.     Preventive  and  Equitable  Remedies. 
Prohibition, — Estrepement. 

By  the  ancient  remedy  of  writ  of  waste  in  the  tenet,  the 
place  wasted  was  recovered  and  also  treble  damages.  After 
the  term  was  expired  the  writ  was  in  the  tenuit,  and  treble 
damages  only  were  recoverable,  the  tenant  no  longer  having 
the  possession.^ 

Besides  this  remedy  for  waste  actually  done,  the  common 
law  provided  a  preventive  remedy  before  the  waste  was  done 
by  writ  of  prohibition  issued  out  of  chancery  against  those 
persons  who  were  by  the  common  law  punishable  for  waste, 

"Kinlyside  v.  Thornton,  2  W.  Bl.,  1111  (1776).  DeGrey,  C.  J.,  "I 
have  no  difficulty  upon  this  question.  Tenant  for  years  commits  waste  and 
delivers  up  the  place  wasted  to  the  landlord.  Had  there  been  no  deed 
of  covenant,  the  action  of  waste,  or  case  in  nature  of  waste  would  have 
lain.  Because  the  landlord  by  the  special  covenant  acquires  a  new  rem- 
edy, does  he  therefore  lose  his  old?" 

Blackstone,  J.,  "Action  of  waste  lies  against  tenant  for  years  after  the 
term  is  expired,  only  the  writ  must  be  in  the  tenuit  and  not  in  the  tenet. 
2  Roll.  Abr.,  830.  It  by  no  means  follows,  because  in  cases  unprovided  for 
by  the  Register,  the  Statute  of  Westm.  2  directs  an  action  on  the  case 
to  be  framed,  that  the  action  on  the  case  in  general  did  not  subsist  at 
common  law."  See  2  Saund.,  252,  note  7;  Burnett  v.  Lynch,  5  B.  &  C, 
603  (1826)  ;  Muskett  v.  Hill,  7  Scott,  855,  873  (1839)  ;  s.  c,  5  Bing.  N.  C, 
694;  Marker  v.  Kenriek,  13  C.  B.,  188  (1853).  See,  also,  18  Ves.,  455; 
2  Ves.  &  B.,  349;   Dick.,  445. 

See,  however,  Jones  v.  Hill,  1  Moore,  100  (1817),  per  Gibbs,  C.  J.: 
"When  there  is  an  express  stipulation  or  contract  between  two  parties, 
this  species  of  action  is  not  maintainable;  for  such  contract  is  a  total 
waiver  of  tort,  and  it  therefore  ceases  to  bear  the  character  of  waste." 
This  dictum  is  not,  however,  found  in  the  report  of  the  case  in  7  Taunt., 
392.  See,  also.  Heme  v.  Bembow,  4  Taunt.,  764  (1813)  ;  Co.  Lit.,  54, 
b,  note  359;  3  Brod.  &  Bing.,  17L 

[Where  a  tenant  in  writing  agrees  to  leave  gas  fittings  and  fixtures, 
which  are  trade  fixtures,  but  he  removes  them,  the  landlord  should  set 
out  his  cause  of  action,  viz.,  the  tort  or  breach  of  duty  committed  by  the 
tenant  as  arising  from  a  right  which  the  landlord  had  by  virtue  of  the 
specific  contract,  and  not  for  a  breach  of  a  common  law  duty.  Dunn  v. 
Garrett,  7  N.  Brunsw.,  218,  222    (1851).] 

12  Inst.,  304;  2  Roll.  Abr.,  830;   2  W.  Bl.,  1111. 

598 


CH.'lP.   XIII.]  PROHIBITION — ESTREPEMEKT.  *4:00 

viz:  tenants  by  the  curtesy,  in  dower,  and  guardians  in  chiv- 
alry, which  remedy  Lord  Coke^  pronounced  ' '  an  excellent  law, 
for  prastat  cautela  quam  medela,  and  preventing  justice  excel- 
leth  punishing  justice."  This  writ  was  considered  by  Lord 
Bathurst,  in  Goodeson  v.  Gallatin,^  as  the  origin  of  the  jurisdic- 
tion of  the  Court  of  Chancery  to  administer  preventive  relief 
by  injunction. 

*The  common  law  also  afforded  another  remedy  pre-  [*400] 
ventive  in  its  nature  by  writ  of  estrepement,  which  is  thus 
lucidly  described  by  Sir  William  Blackstone  in  his  learned  com- 
mentaries:  ■*  "Estrepement  is  an  old  French  word  signifying 
the  same  as  waste  or  extirpation;  and  the  writ  of  estrepemoit 
lay  at  the  common  law,  after  judgment  obtained  in  any  action 
real,^  and  before  possession  was  delivered  by  the  sheriff;  to 
stop  any  waste  which  the  vanquished  party  might  be  tempted 
to  commit  in  lands,  which  were  determined  to  be  no  longer 
his.  But  as  in  some  cases  the  demandant  may  be  justly  appre- 
hensive, that  the  tenant  may  make  waste  or  estrepement  pend- 
ing the  suit,  well  knowing  the  weakness  of  his  title,  therefore 
the  Statute  of  Glocester  «  gave  another  writ  of  estrepement  pen- 
dente placito,  commanding  the  sheriff  firmly  to  inhibit  the  ten- 
ant 'lie  faciat  vastum  vcl  estrepementum  pendente  placito  dido 
indiscitsso.''^  And,  by  virtue  of  either  of  these  writs  the  sheriff 
may  resist  them  that  do,  or  offer  to  do,  waste ;  and  if  otherwise 
he  cannot  prevent  them,  he  may  lawfully  imprison  the  wasters, 
or  make  a  warrant  to  others  to  imprison  them;  or,  if  necessity 
require,  he  may  take  the  posse  comitatus  to  his  assistance.  So 
odious  in  the  sight  of  the  law  is  waste  and  destruction.^  In 
suing  out  these  two  writs  this  difference  was  formerly  observed ; 
that  in  actions  merely  possessory,  where  no  damages  are  recov- 
ered, a  writ  of  estrepement  might  be  had  at  any  time  pendente 

2  2  Inst.,  299.     See,  also,  Jefferson  v.  Bishop  of  Durham,  1  B.  &  P.,  104, 
120   (1797),  where  this  writ  is  considerably  discussed  by  Eyre,  C.  J. 

3  Dick.,  455   (1771). 

*  .3   Bl.   Com.,   225.      See,  also,   Jefferson   v.    Durham    {supra) ;    Jones   v. 
Whitehead,  1    Pars.   Eq.  Cas.,  304    (1847). 
»2  Inst.,  328. 

6  6  Edw.  I.,  c.  13. 

7  Register,    77. 

8  2   Inst.,  329. 

599 


*401  THE  LAW  OF  FIXTURES.  [CHAP.    XIII. 

lite,  nay  even  at  the  time  of  suing  out  the  original  writ,  or  first 
process;  but  in  an  action  where  damages  were  recovered,  the 
demandant  could  only  have  a  writ  of  estrepement,  if  he  was 
apprehensive  of  waste  after  verdict  had ;  ^  for,  with  regard  to 
waste  done  before  the  verdict  was  given,  it  was  presumed  the 
jury  would  consider  that  in  assessing  the  quantum  of  damages. 
[*401j  But  *now  it  seems  to  be  held,  by  an  equitable  construc- 
tion of  the  Statute  of  Glocester,  and  in  advancement  of  the 
remedy,  that  a  writ  of  estrepement,  to  prevent  waste,  may  be 
had  in  every  stage,  as  well  of  such  actions  wherein  damages  are 
recovered,  as  of  those  wherein  only  possession  is  had  of  the 
lands ;  for  peradventure,  saith  the  law,  the  tenant  may  not  be  of 
ability  to  satisfy  the  demandant  his  full  damages.*"^  And  there- 
fore now,  in  an  action  of  waste  itself  to  recover  the  place 
wasted  and  also  damages,  a  writ  of  estrepement  will  lie  as  well 
before  as  after  judgment.  For  the  plaintiff  cannot  recover 
damages  for  more  waste  than  is  contained  in  his  original  com- 
plaint; neither  is  he  at  liberty  to  assign  or  give  in  evidence  any 
waste  made  after  the  suing  out  of  the  writ;  it  is  therefore 
reasonable  that  he  should  have  the  writ  of  preventive  justice, 
since  he  is  in  his  present  suit  debarred  of  any  further  reme- 
dial}'^ If  a  writ  of  estrepement,  forbidding  waste,  be  directed 
and  delivered  to  the  tenant  himself,  as  it  may  be,  and  he  after- 
w^ards  proceeds  to  commit  waste,  an  action  may  be  carried  on 
upon  the  foundation  of  this  writ;  wherein  the  only  plea  of  the 
tenant  can  be,  non  fecit  vastum  contra  prohibitionem:  and,  if 
upon  verdict  it  be  found  that  he  did,  the  plaintiff  may  recover 
costs  and  damages,^ ^  or  the  party  may  proceed  to  punish  the 
defendant  for  the  contempt;  for,  if  after  the  writ  directed  and 
delivered  to  the  tenant  or  his  servants,  they  proceed  to  commit 
waste,  the  court  will  imprison  them  for  this  contempt  of  the 
writ.^-^  But  not  so,  if  it  be  directed  to  the  sheriff,  for  then  it 
is  incumbent  upon  him  to  prevent  the  estrepement  absolutely, 
even  by  raising  the  posse  comitatus,  if  it  can  be  done  no  other 
way. ' ' 

9  F.  N.  B.,  60,  61. 
10 /bid.,  61. 
"5  Eep.,  115. 

12  Moor.,  100. 

13  Hob..  85. 

600 


CHAP.   Xni.]  INJUNCTION. 


Injunction. 


*402 


The  remedies  above  mentioned  were  not  usually  employed 
at  the  time  the  above  extract  was  written  ;i4  and  they  are  now 
♦obsolete  in  the  most  of  the  United  States  i^  as  well  as  [*402J 
in  England,  having  been  superseded  by  the  remedy  of  iujimc- 
tion  to  stay  waste  issued  by  courts  of  equity  upon  a  bill  ex- 
hibited for  that  purpose.  For  an  exhaustive  discussion  of  the 
cases  upon  this  subject  the  reader  is  referred  to  the  professed 
treaties  upon  injunctive  relief,  anything  further  than  an  outline 
of  the  subject  and  its  relation  to  the  law  of  fixtures  being  be- 
yond the  scope  of  this  treatise.^  "^ 

It  may  be  stated  in  general  terms  that  injunctive  relief  will 
be  granted  only  where  the  threatened  injury  will  be  destructive 
to  the  inheritance  or  will  produce  irreparable  injury.^^     But 

14  3  Bl.  Com.,  227. 

15  See  4  Kent  Com.,  77  and  notes.  In  Pennsylvania  and  Delaware  the 
writ  of  estrepement  has  been  adopted  in  practice.  See  ante  sec.  1,  p.  *393, 
note;  Jones  v.  Whitehead,  1  Pars.  Eq.,  Cas.  304  (1847),  where  tliis  writ 
is  considered  at  considerable  length  by  Parsons,  J. 

16  See  High  on  Inj.,  §  419,  et  sea.,  where  the  origin  and  nature  of  the 
jurisdiction,  and  the  cases  on  the  subject  are  exhaustively  considered. 
[Harms  v.  Jacobs,  158  111.,  505,  512   (1895).] 

"See  Jerome  v.  Koss,  7  John.  Ch.,  315  (1823);  Amelung  v.  Seekamp, 
9  Gill  &  John.,  468  (1838);  Hamilton  v.  Ely,  4  Gill,  34  (1846);  Green 
V.  Keen,  4  Md.,  98  (1853)  ;  Atkins  v.  Chilson,  7  Met.,  398  (1844)  ;  Poin- 
dexter  v.  Henderson,  1  Miss.  (Walk.),  176  (1824);  MeCay  v.  Wait,  51 
Barb.,  225  (1868);  Douglass  v.  Wiggins,  1  John.  Ch.,  435  (1815). 
[Guernsey  v.  Wilson,  134  Mass.,  482  (1883);  Loeser  v.  Liebman,  14  N.  Y. 
Supp.,  569,  571  (1891);  John  L.  Koper  Lumber  Co.  v.  Wallace,  93  N.  C, 
22  30  (1885);  Weiss  v.  Jackson  County,  9  Ore.,  470,  472  (1881);  Bangor 
Sllte.Co.  V.  Shimer,  12  Pa.  Dist.,  777,  778  (1903);  McMillan  v.  Ferrell, 
7   W.  Va.,  223,  229   (1874).] 

In  Georges  Creek  Co.  v.  Detmold,  1  Md.  Ch.,  371  (1848),  the  rule  is  laid 
down  that  where  there  is  privity  of  title,  as  between  tenants  for  life,  cr 
years,  and  the  reversioner,  it  is  not  necessary  for  the  plaintiff  to  show 
irreparable  injury  or  destruction  to  the  estate  to  entitle  him  to  the  remedy 
by  injunction.  But  as  between  strangers  or  parties  claiming  adversely 
there  is  no  distinction  between  trespass  and  waste;  and  in  both  cases 
the  injury  must  be  shown  to  be  irreparable,  before  the  court  will  grant 
an  injunction. 

[Equity  will  restrain  trespasses  when  the  1hr<>:itcnc.l  injiiry  is  irreparable 
in  damages.     Cottle  v.  Harrold,  72  Ga.,  830,  838    (1884).] 

601 


*403  THE  LAW  OP  FIXTURES.  [CHAP.   XlII. 

the  mere  allepition  of  a  complainant  that  irremediable  damage 
or  irreparable  mischief  will  ensue  is  not  sul'lieiont.  To  satisfy 
the  conscience  of  the  court,  the  facts  must  be  stated,  to  show 
that  the  apprehension  of  injury  is  well  founded.^**  And  where 
[*403]  *an  adoiiuate  remedy  may  be  had  by  pecuniary  com- 
pensation obtainable  through  the  medium  of  an  action  at  law 
for  damages,  the  injunction  will  be  refused.^ ^     In  order,  how- 

[A  sheriff  will  be  enjoined  from  removing  an  engine  and  boilers  as 
personal  property  where  to  do  so  would  necessitate  tearing  down  brick- 
work and  cause  great  injury  to  the  freehold  and  unusual  damages;  and 
one  is  not  required  to  depend  upon  obtaining  relief  at  law  at  the  end  of 
litigation;  and  especially  is  this  true  when  the  property  is  held  in  trust. 
Jenney  v.  Jackson,  6  111.  App.,  32,   38    (1880).] 

i-^Sce  Amelung  v.  Seekamp,  9  Gill  &  John.,  468  (1838);  Hamilton  v. 
Ely,  4  Gill,  34  (1846);  Green  v.  Keen,  4  Md.,  98  (1853);  White  v. 
Flannigain,  1  Md.,  525  (1852);  Carlisle  v.  Stevenson,  3  Md.  Ch.,  499 
(1850);  Branch  Turnpike  Co.  v.  Yuba  Co.,  13  Cal.,  190  (1859);  Waldron 
V.  Marsh,  5  Cal.,  119  (1855);  Jerome  v.  Ross,  7  John.  Ch.,  315  (1823). 
[McCormick  v.  Nixon,  83  N.  C,  113,  116   (1880).] 

See,  also,  Richardson  v.  Ardley,  38  L.  J.  Chanc,  508  (1869),  where  the 
rule  was  laid  down  that,  if  the  sheriff  takes  part  of  the  fixtures  belong- 
ing to  the  landlord  on  execution  against  the  tenant,  the  Court  of  Chan- 
cery will  interfere  to  prevent  him  without  the  mere  statement  of  its 
being  an  irreparable  damage;  that  the  mere  fact  of  removing  the  land- 
lord's fixtures  is  in  itself  an  irreparable  damage,  or  in  the  nature  of  an 
irreparable  damage.  It  is  a  waste  which  is  committed  upon  the  property 
and  the  Court  of  Chancery  will  interfere  to  prevent  it. 

[The  destruction  of  a  building  or  improvement  permanently  attached  to 
the  freehold,  is  per  se  a  lasting  injury  to  the  inheritance  as  it  will  come 
to  the  reversioner,  and  will  be  regarded  as  waste.  Williams  v.  Chicago  Ex- 
hibition Co.,   188  111.,  19,  31    (1900).] 

13  Amelung  v.  Seekamp,  9  Gill  &  John.,  468  (1838);  Cockey  v.  Carroll, 
4  Md.  Ch.,  344  (1849);  Atkins  v.  Chilson,  7  Met.,  398  (1844);  Robinson 
V.  Russell,  24  Cal.,  467  (1864);  Jerome  v.  Ross,  7  John.  Ch.,  315  (1823). 
[Kice  V.  Looney,  81  111.  App.,  537,  539  (1898) ;  Bolton  v.  McShane,  67 
Iowa,  207,  208  (1885);  Frink  v.  Stewart,  94  N.  C,  484,  486  (1886); 
Dunkart  v.  Rinehart,  87  N.  C,  224,  227  (1882);  Cox  v.  Douglas,  20  W. 
Va.,  175,  178   (1882);  Schoonover  v.  Bright,  24  W.  Va.,  698,  701   (1884).] 

[The  removal  of  a  house  will  not  be  enjoined  where  it  was  erected 
by  one  believing  himself  to  be  the  owner  of  the  lot,  and  the  land-owner 
has  a  remedy  upon  an  appeal  bond.  Campbell  v.  Coonradt,  26  Kan.,  67, 
71   (1881).] 

[Where  an  addition  erected  by  a  tenant  has  been  separated  from  the 
main  building  with  the  intention  of  removing  it  from  the  landlord's 
premises,    upon   which   it   yet   remains,   an    injunction    will   be    granted   to 

602 


CHAP.   Xm.]  INJUNCTION.  *403 

ever,  to  entitle  the  complainant  to  relief  by  injunction,  the  evi- 
dence of  his  title  must  be  clear,  and  injunctive  relief  will  in 
general  be  refused  as  against  a  defendant  in  possession  under 
an  adverse  title.^"*  It  is  not  necessary  in  order  to  warrant  relief 
by  injunction  that  actual  waste  shall  have  been  already  com- 
mitted.-^ It  is  sufficient  to  show  that  there  exists  the  intention 
to  commit  waste,  or  that  threats  thereof  have  been  made.22  Thus, 
sending  a  surveyor  to  mark  out  trees  preparatory  to  cutting 
them,  is  sufficient  ground  for  an  injunction,  though  no  waste  has 
as  yet  actually  been  committed.^^  So,  a  claim  by  a  tenant  for 
life  of  a  right  to  commit  waste  where  no  such  right  existed,  has 
been  held  sufficient  to  warrant  an  injunction  though  no  waste 

restrain  the  removal  from  the  premises;  but  a  mandatory  injunction 
will  not  issue  to  restore  the  addition  as  it  was,  as  a  suflBcTent  remedy  can 
be  obtained  by  the  recovery  of  damages.  Fortescue  v.  Bowler,  55  N.  J. 
Eq.,  741,  746    (1897).] 

20  See  Pillsworth  v.  Hopton,  6  Ves.,  51  (1801);  Field  v.  Jackson,  Dick., 
599   (1782);   Davis  v.  Leo,  6  Ves.,  784   (1802);   Poindexter  v.  Henderson, 

1  Miss.  (Walk.),  176  (1824);  Ne\'itt  v.  Gillespie,  2  Miss.  (1  How.),  108 
(1834);  Bogey  v.  Shute,  4  Jones  Eq.,  174  (1858);  Storm  v.  Mann,  4 
John.  Ch.,  21   (1819).     [Nethery  v.  Payne,  71  Ga.,  374,  379   (1883).] 

See,  however.  Earl  Talbot  v.  Scott,  4  Kay  &  John.,  96  (1858)  ;  Haigh 
V.  Jaggar,  3  Colly.  Ch.,  231  (1845),  for  certain  limitations  upon  the  rule 
in  cases  of  fraud,  and  where  the  waste  is  malicious  and  destructive,  and 
irreparable  by  any  proceedings   at  law.      See,   also,   Shubrick   v.   Guerard, 

2  Desaus.  Eq.,  616  and  note   (1808). 

[Where  a  person  seeks  to  enjoin  the  removal  of  a  building,  he  must 
show  not  only  his  ownership  of  the  building,  but  also  of  the  lots,  or,  at 
least,  a  right  to  have  it  remain  upon  the  lots,  unless,  possibly  the  defendant 
is  a  mere  trespasser.     Cuppy  v.  O 'Shaughnessy,  78  Ind.,  245,  248   (1881).] 

[The  complainant  must  show  title  to  the  land,  and  actual  possession. 
Wearin  v.   Munson,   62   Iowa,  466,  467    (1883).] 

[An  injunction  will  be  granted  to  restrain  waste  by  the  defeated 
party  in  a  suit  of  ejectment.     Winans  v.  Boidlcr,  6  Okla.,  603,  607  (1898).] 

21  Gibson  v.  Smith,  2  Atk.,  182  (1741);  Coffin  v.  Coffin,  Jac,  70  (1821). 
[Poertner  v.  Russel,  33  Wis.,  193,  199   (1873).] 

22  White  Water  Valley  Canal  Co.  v.  Comegys,  2  Ind.,  469  (1851);  Lou- 
don v.  Warfiold,  5  J.  J.,  Mar.,  196  (1830)  ;  Coffin  v.  Coffin,  Jac,  71  (1821) 
Gibson  v.  Smith,  2  Atk.,  182  (1741).  Sec,  also,  6  Ves.,  706;  Die.  101 
1  Jac.  &  Walk.,  653.  [Dougherty  v.  Spencer,  23  111.  App.,  357,  359  (1887) 
Thatcher  v.  Humble,  67  Ind.,  444  (1879)  ;  Thitman  v.  James,  34  Minn., 
547,  .552    (1886);   Poprtncr  v.  Russol,  33  Wis.,   193,   199    (1873).] 

23  Jackson  v.  Cator,  5  Ves.,  688  (1800).  See,  also.  Coffin  v.  Coffin 
(supra) 

603 


*4G4  THE  LAW  OF  FIXTURES.  [CHAP.   XIII. 

had  in  fact  been  coniniitted.--*  But  where  there  is  no  claim  of 
[*404]  right  to  *coinmit  acts  which  amount  to  waste,  and  there 
exists  no  intention  of  committing  such  acts,  an  injunction  will 
not  be  granted  on  the  sole  ground  that  the  tenant  in  possession 
has  at  a  previous  time  committed  waste.^'"'  Indeed,  the  writ  of 
injunction  being  a  preventive  rather  than  a  remedial  writ,  is 
inapplicable  to  past  injuries,  which  being  already  committed  are 
beyond  th(.^  reach  of  a  preventive  writ;  and  where  future  waste 
is  not  threatened  there  is  no  ground  for  the  issuance  of  the 
writ.2« 

In  all  cases  in  order  to  warrant  relief  by  injunction  on  the 
specific  ground  of  waste,  the  property  in  dispute  must  be  an- 
nexed to  the  freehold.  And  where  a  bill  for  an  injunction 
and  an  account  alleged  the  commission  of  waste  by  the  defend- 
ant by  destroying  a  dove-cote,  and  removing  the  locks  from  the 
doors  of  the  house,  the  chains  from  the  lawn,  the  statues,  inuiges 
and  fences  from  the  pleasure-grounds,  wardrobes,  presses  and 
closets,  forming  part  of  the  wainscot  of  the  house.  Lord  Chan- 
cellor Eldon  in  delivering  his  opinion  observed,  that  the  founda- 
tion of  the  motion  to  revive  the  injunction  was,  first  a  clear  act 
of  waste ;  second,  another  act  of  removing  things  supposed  to  be 
fixed  to  the  freehold,  wainscot,  presses,  etc. ;  that  as  to  the  dove- 
cote a  clear  act  of  waste  was  proved,  and  therefore  against  waste 
the  injunction  must  be  revived;  but  that  he  could  not  grant  it 
against  removing  the  presses,  eo  nomine,  if  not  fixed  to  the  free- 
hold.2^    Neither  in  ordinary  cases  will  an  injunction  be  granted 

24  See  Gibson  v.  Smith,  Barnard.  Ch.,  497  (1741);  Crockett  t.  Crockett, 
2  Ohio  St.,  180,  186  (1853).  See,  also,  Livingston  v.  Reynolds,  26  Wend., 
115,  123  (1841). 

25  Crockett  v.  Crockett,  2  Ohio  St.,  180  (1853).  See,  also,  Southard  v. 
The  Morris  Canal,  1  N.  J.  Eq.   (Saxt.),  518   (1832). 

26  See  Southard  v.  The  Morris  Canal,  1  N.  J.  Eq.  (Saxt.),  518  (1832); 
Watson  V.  Hunter,  5  John.  Ch.,  169   (1821). 

27Kimpton  v.  Eve,  2  Ves.  &  Bea.,  349   (1813). 

"Note  that  waste  was  assigned  in  pulling  down  one  wooden  wall,  also 
in  permitting  one  brick  wall  to  fall  wholly  down,  and  also  in  breaking  up 
and  destroying  the  plank  floor  and  mangers  of  a  certain  stable,  without 
saying  'then  fixed  to  the  soil';  and  for  this  cause  it  was  holden  no  waste. 
The  law  is  the  same  in  the  said  two  other  cases  above,  inasmuch  as  it  is 
not  expressly  alleged  that  the  walls  were  coped  or  covered,  it  is  not  waste; 
Accordant  44  E.   [44  b,  pi.  52],  and  22  H.  6  [24  b,  pi.  45].     But  quaere 

604 


CHAP,    XIII.]  INJUNCTION.  *405 

to  restrain  the  removal  of  *timber  already  cut  and  sev-  [*-l:05] 
ered  from  the  premises ;  ^s  though  where  the  mischief  would  be 
irreparable  it  might  be  necessary  to  interfere  in  this  extraordi- 
nary way  and  prevent  the  removal  of  the  timber.^s 

In  some  cases  a  court  of  chancery  will  restrain  waste  which 
at  law,  either  by  reason  of  the  nature  of  the  estate,  or  from  the 

what  shall  be  intended  of  a  stone  or  brick  wall?"  Earl  of  Bedford  v. 
Smith,  Dy.,  108  b   (1689). 

See,  also,  Eiehardson  v.  Ardley,   38  L.  J.  Chanc,  508   (1869). 

Constructive  annexation  is  sufficient.  Titus  v.  Mabee,  25  111.,  257 
(1861);   Titus  v.  Ginheimer,  27  111.,  462   (1861), 

[Where  the  removal  of  a  house  was  permanently  enjoined  by  the 
lower  court,  the  appellate  court  held  that  the  latter  court  did  not  have 
jurisdiction,  as  title  to  real  estate  was  not  involved.  Bourne  v.  Beck,  22 
Ky,  Law  E.,  792   (1900).] 

28  Watson  V.  Hunter,  5  John.  Ch.,  169  (1821);  Van  Wyck  v.  Alliger,  6 
Barb.,  507  (1849).     [Bank  of  Chenango  v.  Cox,  26  N,  J.  Eq.,  452  (1875).] 

See,  however,  anonymous  case  in  1  Ves.  Jun.,  93  '(1790),  where  Lord 
Thurlow  upon  the  Eegister's  saying  that  many  such  orders  had  been 
made,  granted  an  order  to  prevent  the  removal  of  timber  unlawfully  cut 
down. 

-9  Per  Kent,  Ch.,  in  Watson  v.  Hunter  (supra).  In  this  case  Chancellor 
Kent  in  considering  this  subject  said:  "This  Court  will  stay  the  com- 
mission of  waste  or  the  transfer  of  negotiable  paper,  in  certain  cases,  in 
order  to  prevent  irreparable  mischief;  but  the  only  mischief  that  can  arise 
in  the  present  case,  as  to  the  timber  already  cut  and  drawn  to  the  mills 
of  the  defendants,  is  the  possible  inability  of  the  party  to  respond  in 
damages.  That  is  a  danger  equally  applicable  to  all  other  ordinary  de- 
mands, and  it  is  not  an  impending  and  special  mischief,  which  will  justify 
this  extraordinary  preventive  remedy  by  injunction.  If  the  injunction 
could  be  ordinarily  applied  to  waste  already  committed,  I  apprehend  wo 
should  very  rarely  hear  of  a  special  action  on  the  case,  in  the  nature  of 
waste,  in  the  courts  of  common  law. ' '  Eeferring  to  the  case  in  1  Ves, 
Jr.,  93,  he  proceeded:  "Such  a  case  is  not  a  sufficient  authority  to  ex- 
tend the  injunction  to  the  timber  already  cut.  There  must  be  a  very  special 
case  made  out  to  authorize  me  to  go  so  far,  and  such  cases  may  be  sup- 
posed. A  lease,  for  instance,  may  have  been  fraudulently  procured  by  an 
insolvent  person  for  the  very  purpose  of  plundering  the  timber  under  the 
Bheltcr  of  it.  Perhaps  in  that  and  like  cases  where  the  mischief  would 
be  irreparable  it  might  be  necessary  to  interfere  in  this  extraordinary  way, 
and  prevent  the  removal  of  the  timber.  I  ilo  not  mean  to  be  understood 
to  say  that  the  Court  will  never  interfere,  but  that  it  ought  not  to  bo 
done  in  ordinary  cases  like  tlie  present.  I  shall  accordingly  confine  the 
injunction  to  the  timber  standing  or  growing  at  the  time  if  the  service 
of  the  process, ' ' 


•406  THE  LAW  OP  FIXTURES.  [CHAP.   XIII. 

estate's  having:  been  expressly  p;ranted  "without  impeachment 
of  waste,"  is  dispunisliable.  Thus,  a  tenant  for  life  without  im- 
peachment of  waste  may  be  restrained  by  injunction  from  the 
wanton  and  malicious  injury  or  destruction  of  buildings  upon 
[*406]  the  demised  premises.^"  So,  relief  may  be  had  in  *chan- 
cery  to  prevent  waste  to  the  injury  of  a  contingent  estate,  or  an 
executory  devise  even,  dependent  upon  a  legal  estate.-''^ 

As  to  the  parties  between  whom  relief  by  injunction  to  re- 
strain waste  is  applicable,  it  may  be  stated  that  in  general 
injunctive  relief  is  exercised  only  in  cases  where  there  is  a 
privity  of  estate,  though,  as  will  be  seen  hereafter,  the  jurisdic- 
tion has  been  extended  to  include  some  eases  of  trespasses  not 
founded  in  privity. 

The  most  ordinary  applications  of  this  species  of  relief  arise 
upon  bills  filed  by  the  owner  of  the  inheritance  against  ten- 
ants for  life,  or  for  years,  or  parties  claiming  under  them.32 
And  an  injunction  may  be  granted  on  a  bill  filed  by  a  remain- 
so  See  Paekington's  Case,  3  Atk.,  215  (1744);  Strathmore  v.  Bowes,  2 
Bro.  C.  C,  88  (1786);  s.  c,  2  Dick.,  673;  1  Cox,  263;  Vane  v.  Bernard, 
1  Salk.,  161  (1714);  s.  c,  2  Vern.,  738;  Marker  v.  Marker,  9  Hare,  1 
(1851)  ;  Aston  v,  Aston,  1  Ves.  St.,  264  (1749)  ;  O'Brien  v.  O'Brien,  Amb., 
107  (1751);  Marquis  of  Downshire  v.  Lord  Sandys,  6  Ves.,  107  (1801); 
Lord  Tamworth  v.  Lord  Ferrers,  Id.,  419  (1801);  Day  v.  Merry,  16  Id., 
375  (1810)  ;  Abraham  v.  Budd,  2  Freem.  Ch.,  53  (1680)  ;  1  Bro.  C.  C, 
166;  2  Atk.,  383;  16  Ves.,  185,  1  Term,  56;  Com.  Dig.,  Chancery,  D  11; 
Clement  v.  Wheeler,  25  N.  H.,  360   (1852).     See  ante,  p.  *181,  note. 

312  Story's  Eq.  Jur.,  §  914;  Stansfield  v.  Habergham,  10  Ves.,  278 
(1804). 

[Contingent  remainder-men  can  have  the  life  tenant  enjoined  from 
future  voluntary  waste.  Cannon  v.  Barry,  59  Miss.,  289,  305  (1881). 
So  can  an  executory  devisee.  Gordon  v.  Lowther,  75  N.  C,  193,  195  (1876). 
But  the  holder  of  a  base  fee  will  not  be  enjoined  from  the  commission  of 
equitable  waste  at  the  suit  of  an  executory  devisee  where  the  contingency 
which  will  determine  the  fee  is  not  reasonably  certain  to  happen,  and  the 
waste  is  not  wanton  nor  unconscientious.  Gannon  v.  Peterson,  193  111., 
372,  383  (1901).] 

32  See  Kimpton  v.  Eve,  2  Ves.  &  Bea.,  349  (1813),  already  cited,  where 
an  injunction  against  waste  by  a  tenant  was  allowed;  Eichardson  v.  Ard- 
ley,  38  L.  J.  Chanc,  508  (1869),  which  was  a  bill  filed  by  a  landlord  to 
restrain  the  sale  by  the  sheriff  of  the  landlord 's  fixtures  on  execution 
against  the  tenant;  Dickinson  v.  Jones,  36  Geo.,  97  (1867).  See,  also 
Titus   V.   Mabee,    25    111.,    257    (1861);    Titus   v.   Ginheimer,    27   Id.,   462 

606 


CHAP.    XIII.]  INJUNCTION.  *406 

(1861).  [Kobertson  v.  Meadors,  73  Ind.,  43,  45  (1880);  Hughes  v. 
Burriss,  85  Mo.,  660,  668;  Holmes  v.  Standard  Pub.  Co.,  55  Atl.,  1107 
1109  (X.  J.  Ch.,  1903) ;  Miller  v.  Gray,  29  Tex.  Civ.  App.,  183  (1902)  • 
Poertner  v.  Eussell,  33  Wis.,  193,  199  (1873)  ;  see,  also,  Agnew  v.  Whit- 
ney, 10  Phila.,  77  (1873);  Allan  v.  Eowe,  1  N.  B.  Eq.  (Trueman),  41,  52 
(1894).] 

[The  removal  of  a  building  by  the  tenant's  assignee  is  waste,  and  may  be 
restrained  by  injunction.     Gray  v.  McLennan,  3  Man.,   337,  342    (1886).] 

[A  landowner  in  possession  can  enjoin  a  purchaser  of  a  former  tenant 's 
interest  in  fixtures  from  removing  such  fixtures,  whether  they  be  real  or 
personal  property,  where  it  is  not  shown  that  the  title  or  right  of  possession 
was  in  the  tenant  at  the  time  of  the  purchase.  Nolan  v.  Kotsler,  135  Cal., 
264,  266   (1901).] 

[Where  the  lessor  enjoins  the  lessee  from  removing  fixtures  pending  an 
appeal,  and  intends  to  appropriate  the  property  in  dispute,  an  injunction 
to  prevent  the  lessor  from  interfering  with  the  fixtures  pending  such 
appeal  is  properly  granted.  Baker  v.  National  Biscuit  Co.,  96  111.  App., 
228,  229   (1901).] 

[A  lessee  for  ninety-nine  years,  with  a  covenant  for  perpetual  renewal, 
will  be  enjoined  from  tearing  down  a  building  if  the  reversioner's  security 
for  rent  reserved  would  be  greatly  and  irreparably  impaired.  Crowe  v. 
Wilson,  65   Md.,  479    (1886).] 

[If  a  mechanics'  lien  upon  a  building  erected  by  a  tenant  be  foreclosed, 
and  the  landlord,  by  acquiring  the  certificate  of  purchase,  acquires  title 
to  the  building,  he  is  entitled  to  an  injunction  against  its  removal;  but  he 
must  declare  as  a  lien-holder,  and  not  as  owner.  Cuppy  v.  O  'Shaughnessy, 
78   Ind.,   245,   249    (1881).] 

[A  lessee  will  be  restrained  from  cutting  and  removing  timber,  even 
though  no  irreparable  injury  be  shown,  where,  by  the  terms  of  his  lease, 
he  is  restricted  to  a  particular  use  of  the  premises.  Frank  v.  Brunnemann, 
8  W.  Va.,  462,  471   (1875).] 

In  Hooper  v.  Broderick,  9  L.  J.,  Ch.  (N.  S.),  321  (1840),  upon  a  ques- 
tion as  to  the  legal  right  of  a  tenant  to  remove  fixtures,  upon  a  motion 
to  dissolve  an  injunction,  the  V.  C.  expressed  the  opinion  that  the  motion 
should  stand  over  until  the  plaintiffs  had  been  permitted  to  inspect  and 
make  a  list  of  the  articles  proposed  to  be  removed ;  and  then  in  order  to 
try  the  legal  right  to  do  so,  that  the  plaintiffs  should  bring  an  action 
against  the  defendant  in  which  the  defendant  should  admit  that  he  had 
removed  the  things  in  dispute. 

However,  in  Pugh  v.  Arton,  L.  R.,  8  Eq.,  626  (1S69),  the  right  of  a 
tenant  to  remove  fixtures  was  passed  upon  by  Malins,  V.  C,  upon  a  bill 
to  enjoin  such  removal  filed  by  the  landlord,  without  recourse  to  a  court  of 
law  to  determine  the  legal  right.  See,  also,  Tjawton  v.  Tiawton;  Dufllcy 
v.  Warde;  Quincy.  Ex  parte,  cited  in  a  preceding  part  of  the  work,  and 
also  post,  where  questions  as  to  the  right  to  fixtures  between  various  partiea 
arose  and  were  determined  in  equity. 

607 


*407  .  THE  LAW  OF  FIXTURES.  [CHAP.   XIU. 

[*407]  *dcrman  for  lif e  ^  as  well  as  one  filed  by  remainderman 
in  fee;  and  this  notwithstanding:  there  is  an  intervening  estate 
for  life.-  But  an  injunction  will  not  be  granted  at  the  suit  of 
the  landlord  against  the  tenant  or  his  assigns  to  restrain  the 
connnission  of  waste  by  the  removal  from  the  demised  premises 
of  a  building  erected  by  the  tenant,  where  it  appears  that  the 
landlord  is  not  entitled  to  the  reversion.^  An  injunction  may 
be  issued  to  restrain  a  tenant  from  year  to  year  from  removing 
the  crops,  manure,  etc.,  contrary  to  the  custom  of  the  country .^ 
So,  a  ground  landlord  may  enjoin  the  commission  of  waste  by 
an  under  lessee.^ 

The  remedy  by  injunction  to  restrain  waste  is  not  precluded 
by  the  fact  that  the  lease  contains  a  covenant  by  the  lessee  to 
repair  the  premises  and  leave  in  repair  at  the  end  of  the  term, 
etc. ;  ^  nor  by  a  covenant  not  to  injure,  cut  down,  take,  destroy 
or  carry  away,  etc.,  any  more  wood  or  timber  than  shall  actually 
be  used  on  the  premises,  and  not  to  make  or  suffer  to  be  made 

iPerrot  v.  Perrot,  Atk.,  94  (1744);  Davis  v.  Leo,  6  Ves.,  787  (1802); 
Garth  v.  Cotton,  1  Dick.,  183,  205,  208  (1753);  Birch-Wolfe  v.  Birch, 
L.  R.,  9  Eq.,  683  (1870). 

Contra,  Mayo  v.  Feaster,  2  McCord  Ch.,  137    (1827). 

2  Perrot  v.  Perrot,  3  Atk.,  94  (1744);  Robinson  v.  Litton,  Id.,  209 
(1744)  ;  Davis  v.  Leo,  6  Ves.,  787  (1802)  ;  Garth  v.  Cotton,  1  Dick.,  183,  205, 
208  (1753)  ;  s.  C,  1  Ves.  Sr.,  555;  3  Atk.,  751;  Abraham  v.  Bubb,  2  Freem. 
Ch.,  53  (1680);  Dennett  x.  Dennett,  43  N.  H.,  499  (1862);  Com.  Dig., 
Waste,  C  3;  1  Eq.  Ca.  Abr.,  400;  3  P.  Wms.,  268;  Amb.,  105;  3  Atk.,  723; 
2  Story's  Eq.  Jur.,  §  913. 

sPerrine  v.  Marsden,   34  Cal.,  14   (1867). 

4  Brett  V.  Brett,  2  Madd.,  62  (1817);  Pultney  v.  Shelton,  5  Ves.,  147 
(1799)  ;  Onslow  v.  ,  16  Id.,  173  (1809).  See,  also,  Lewis  v.  Chris- 
tian, 40  Geo.,  187   (1869). 

[A  tenant  may  be  enjoined  by  his  landlord  from  removing  manure. 
Bonnell  v.  Allen,  53  Ind.,   130,  134   (1876).] 

[An  injunction  will  not  be  granted  at  the  suit  of  the  landlord  to  restrain 
a  tenant  from  cutting  a  matured  crop,  upon  the  ground  that  it  would  be 
an  injury  to  the  freehold.     Perry  v.  Hamilton,  138   Ind.,  271    (1894).] 

c  Farrant  v.  Lovel,  3  Atk.,  723  (1750),  s.  c,  nom,  Farrant  v.  Lee,  Amb. 
105. 

cSee  Sunderland  v.  Newton,  3  Sim.,  450  (1830)  ;  Kimpton  v.  Eve,  2  Ves. 
and  Bea.,  349  (1813);  Richardson  v.  Ardley,  38  L.  J.  Chanc,  508   (1869). 

[A  tenant  will  be  enjoined  from  tearing  down  a  building,  with  the 
intention  of  erecting  another,  although  his  leaSQ  authorizes  alterations. 
Davenport  v.  Magoon,  13  Ore.,  3  (1884).] 

608 


CH.VP.   XIII.]  INJUNCTION. 


*408 


any  manner  of  waste,  sale  or  destruction  in  the  wood  or  timber 
on  the  premises^ 

The  value  of  the  fixtures  should  not  be  assessed  as  damages 
upon  the  dissolution,  after  the  expiration  of  the  term,  of  an  in- 
junction issued  before  such  expiration  prohibiting  the  removal 
*of  fixtures  by  the  tenant,  the  injunction  not  changing  [*408] 
the  title  to  the  property  nor  making  the  party  suing  it  out 
liable  for  a  conversion.^  But  where  in  such  a  case  after  such 
expiration  the  landlord  being  in  possession  of  the  premises,  by 
warranty  deed  sold  and  conveyed  the  premises,  buildings  as  well 
as  land,  to  a  bona  fide  purchaser  for  a  valuable  consideration, 
and  applied  the  proceeds  to  his  own  use,  such  buildings  being 
as  between  landlord  and  the  tenant  the  property  of  the  tenant, 
though  passing  by  such  deed  to  the  purchaser,  it  was  held  that 
this  was  a  conversion  and  entitled  the  lessee  to  compensation 
in  damages;  and  in  assessing  the  damages  on  the  dissolution 
of  such  injunction  the  value  of  the  buildings  for  purposes  of 
removal  was  properly  included.^ 

The  remedy  by  injunction  to  restrain  the  commission  of  waste 
is  also  in  some  cases  applicable  to  the  relation  existing  be- 
tween the  mortgagee  and  the  mortgagor  in  possession,  the  lat- 
ter of  whom  will  be  restrained  by  injunction  from  severing 
and  removing  fixtures,  timber,  etc.,  constituting  a  part  of  the 
mortgage  security,  to  such  an  extent  as  to  diminish  the  value 
of  the  property  and  thereby  render  the  mortgage  security 
inadequate.^"     The  authorities  certainly  go  to  the  extent  above 

T  Livingston  v.  Reynolds,  26  Wend.,  115  (1841). 

sBircher  v.  Parker,  40  Mo.,  118  (1867).  [See,  ante,  p.  *141.  Poertner 
V.  Eussel,  33  Wis.,  193,  203  (1873).] 

[A  tenant  guilty  of  contempt  of  court  by  removing  fixtures  in  violation 
of  an  injunction,  must  not  only  restore  the  same,  but  must  meet  any 
expenditure  required  to  remedy  the  injuries  thereto.  Ashby  v.  Ashby,  62 
N.  J.  Eq.,  618,  622   (1901).] 

oBircher  v.  Parker,  43  Mo.,  443  (1869).  Tho  warranty  deed  from  the 
landlord  to  the  purchaser  was  held  to  have  been  properly  read  in  evidence 
as  tending  to  show  a  conversion,  and  was  sufficient  for  that  purpose.     lb. 

loHce  Kobinson  v.  Preswick,  3  Edw.  Ch.,  246  (1838);  Capner  v.  Fleming 
Mining  Co.,  3  N.  J.  Eq.,  467  (18.36)  ;  Brown  v.  Stewart,  1  Md.  Ch.,  87,  93 
(1847)  ;  Maryland  v.  Northern,  etc.,  Rwy.  Co.,  18  Md.,  193  (1861)  ;  Oray  v. 
Baldwin,  8  Blackf.,  164  (1846)  ;  Bunker  v.  Locke,  l.T  Wis.,  63.'5  (1862)  ;  En- 
sign v.  Colburn,  11  Paige,  503  (1845);  Robinson  v.  Russell,  24  Cal.,  467 
39  609 


•40i)  THE   LAW    OF    FlXTliRES.  [CllAP.    XIII. 

[*409J  *statod,  and  some  of  tlieiii,  and  especially  those  where 
the  mortgaii:oo  is  considered  the  owner  of  the  fee,  go  further 
and  state  the  doctrine  without  the  limitation  as  to  impairing 
and  rendering  insufficient  the  mortgage  security,  to  be,  that  the 
mortgagor  in  possession  will  be  restrained  by  injunction  from 
removing  fixtures,  etc.,  constituting  a  part  of  the  mortgage 
security,  or  otherwise  committing  waste  upon  the  mortgaged 
premises.^  ^  The  mortgagor  in  possession  may,  however,  ac- 
cording to  the  weight  of  authority  (at  least  in  those  States 
where  a  mortgage  is  considered  a  mere  security),  exercise  all 

(1864) ;  Ackroyd  v.  Mitchell,  3  L.  T.  (N.  S.),  236  (1860) ;  King  v.  Smith,  2 
Hare,  239,  244  (1843),  where  Wigram,  V.  C,  in  defining  the  terms  "suf- 
ficient security,"  said:  "I  think  the  question  which  must  be  tried  is 
whether  the  property  the  mortgagee  takes  as  a  security  is  sufficient  in  this 
sense: — that  the  security  is  worth  so  much  more  than  the  money  advanced, 
that  the  act  of  cutting  timber  is  not  to  be  considered  as  substantially  im- 
pairing the  value,  which  was  the  basis  of  the  contract  between  the  parties 
at  the  time  it  was  entered  into. ' ' 

See,  also,  Camp  v.  Bates,  11  Conn.,  51  (1835);  Webb  v.  Boyle,  63  N.  C, 
271  (1869);  Witmer's  Appeal,  45  Penn.  St.,  455  (1863),  which  was  an  in- 
junction bill  by  prior  judgment  creditors  whose  judgments  were  a  lien  upon 
the  land,  to  restrain  the  sale  by  subsequent  judgment  creditors  of  fixtures 
(parts  of  the  engine  and  other  machinery  of  a  grist  and  saw-mill),  which 
had  been  severed  by  the  judgment  debtor  for  the  purpose  of  converting 
them  into  personalty  and  enabling  such  subsequent  creditors  to  levy  thereon 
and  sell  in  satisfaction  of  their  claims.  Such  sale  was  restrained  by  the 
court,  upon  the  ground  that  such  severance  was  a  fraud  upon  the  com- 
plainants, the  real  estate  upon  which  their  judgments  were  liens  being  con- 
ceded to  be  insufficient  for  their  security.  [See  Penn  Mut.  L.  Ins.  Co.  v. 
Semple,  38  N.  J.  Eq.,  314  (1884),  as  between  a  mortgagee  and  a  judgment 
creditor.] 

[Mutual  Life  Ins.  Co.  v.  Bigler,  79  N.  Y.,  568  (1880),  modifying  Mutual 
Life  Ins.  Co.  v.  National  Bank  of  Newburgh,  25  Supr.  Ct.  (18  Hun),  371, 
372  (1879)  ;  Starks  v.  Eedfield,  52  Wis.,  349,  354  (1881)  ;  Taylor  v.  Collins, 
51  Wis.,  123,  127  (1881);  Scott  v.  Webster,  50  Wis.,  53  (1880);  see,  also, 
Cahn  v.  Hewsey,  29  N.  Y.  Supp.,  1107  (1894);  Kimball  v.  Darling,  32 
Wis.,  67.5,  687   (1871);  Kobinson  v.  Cook,  6  Ont.,  590,  598   (1884).] 

[Under  the  statute  a  mortgagee  can  enjoin  the  removal  of  a  building  if  an 
adequate  remedy  can  not  be  afforded  by  an  action  of  damages.  State  Sav. 
Bank  v.  Kercheval,  65  Mo.,  682,  688  (1877).] 

11  See  Nelson  v.  Pinegar,  30  111.,  473  (1863)  ;  State  v.  Northern,  etc.,  Rwy. 
Co.  (supra);  Salmon  v.  Clagett,  3  Bland  Ch.,  180  (1830).  [Williams  v. 
Chicago  Exhibition  Co.,  188  111.,  19,  30  (1900);  Minneapolis  Trust  Co.  v. 
Verhulst,  74  111.  App.,  350,  355   (1897).] 

610 


CHAP.   XIII.]  INJUNCTION.  *410 

such  acts  of  ownership  upon  the  premises  (even  to  the  extent  of 
committing  acts  ordinarily  amounting  to  waste),  as  do  not  im- 
pair and  render  inadequate  the  mortgage  security,  without  ren- 
dering himself  subject  to  be  restrained  by  injunction;  12  though 
in  those  States  where  the  mortgage  is  considered  a  conveyance  of 
the  land  an  action  at  law  may  lie  in  respect  of  the  things  sev- 
ered. In  those  States  where  the  mortgagee  is  considered  the 
owner  of  the  fee,  and  the  doctrine  is  stated  generally  that  the 
mortgagee  is  entitled  to  an  injunction  to  prevent  waste  being 
committed  upon  the  mortgaged  premises,  the  grounds  of  the 
interference  are  stated  to  be  that  the  mortgagee  is  entitled  to 
his  whole  security  unimpaired  during  the  existence  of  his 
♦mortgage;  13  and  that,  as  between  the  parties  to  the    [*410] 

See,  also,  Titus  v.  Mabee,  25  111.,  257  (1861) ;  Titus  v.  Ginheimer,  27  Id., 
462  (1861),  where  the  sheriff  was  restrained  at  the  suit  of  trustees  of  the 
bondholders  from  selling  fixtures  on  execution  against  the  owner  of  the 
land. 

i2Kekewich  v.  Marker,  3  Mac.  &  G.,  311,  329  (1851);  King  v.  Smith,  2 
Hare,  239,  243  (1843)  ;  Perrine  v.  Marsden,  34  Cal.,  14  (1867)  ;  Buckout  v. 
Swift,  27  Cal.,  433  (1865)  ;  Robinson  v.  Russell,  24  Cal.,  467  (1864)  ;  Cooper 
V.  Davis,  15  Conn.,  556,  561  (1843).  See  ante,  p.  *48.  [Williams  v.  Chicago 
Exhibition  Co.,   86  111.  App.,  167   (1899).] 

[Where  the  mortgagor  is  not  alleged  to  be  insolvent,  and  the  loan  is  nine 
thousand  dollars  secured  by  property  worth  forty  thousand  dollars,  the 
mortgagee  is  not  entitled  to  an  injunctiou  to  restrain  the  removal  of  fixtures 
worth  two  thousand  dollars.     Andrews  v.  Chandler,  27  111.  App.,  103,  110 

(1887).] 

[While  a  court  of  equity  will  interfere  by  injunction  to  restrain  waste  by 
a  mortgagor  in  possession,  the  waste  must  be  injury  to  the  freehold 
which  will  impair  the  security  of  the  mortgagee.  The  removal  of  half 
decayed  rails,  and  the  scattered  plank  of  a  stable  which  has  fallen  from  its 
own  decay,  is  not  waste.     Cokcr  v.  Whitlock,  54  Ala.,  180,  183  (1875).] 

[Where  machinery  is  attached  by  the  buyer  to  his  plantation,  and  the 
seller  has  a  right  to  have  such  machinery  sold  to  satisfy  his  claim,  tho 
mortgagee  of  the  plantation  will  be  enjoined  from  selling  such  machinery. 
Walburn-Swenson  Co.  v.  Darrell,  49  La.  Ann.,  1044,  1046  (1897).] 

13  Nelson  v.  Pinegar,  30  111.,  473  (1863);  State  v.  Northern,  etc.,  Ewy. 
Co.,  18  Md.,  193  (1861);  Robinson  v.  Litton,  3  Atk.,  210  (1744). 

[After  foreclo.surc  and  sale,  the  mortgagor  will  bo  enjoined  from  cutting 
and  removing  trees  valuable  for  lumber,  which  constitute  the  chief  value 
of  the  land.     Malone  v.   Marriott,  64  Ala.,  486,  49J   (1S79).] 

[P^ither  a  senior  or  junior  mortgagee  has  the  right,  by  injunction,  to 
arrest  the  commission  of  waste  by  the  mortgagor  in  possession.  Coleman 
V.  Smith,  55  Ala.,  368,  378  (1876).) 

611 


•410  THE   LAW    OF   FIXTURES.  [CHAP.    XIII. 

mortgage  the  mortgagee  is  eonsitlered  in  equity  as  the  owner  of 
the  fee  and  as  such  entitled  to  all  the  rights  and  remedies  which 
the  law  gives  to  such  an  owner.*"*  The  principle  upon  which 
relief  is  granted  in  those  States  where  a  mortgage  is  considered 
only  a  security,  is  that  of  preventing  the  destruction  of  such 
security.*  ^ 

Injunction  is  also  a  proper  remedy  in  certain  eases  as  be- 
tween the  vendor  and  vendee  of  real  estate.  Thus  it  has  been 
held  to  be  a  proper  remedy  in  behalf  of  the  vendee  in  posses- 
sion to  prevent  the  removal  by  the  vendor  of  fruit  trees  in  a 
nursery  and  ornamental  shrubbery  claimed  by  the  vendor  by 
virtue  of  a  parol  reservation  from  the  deed.**^  But  a  vendee  of 
land  in  possession  under  his  contract  for  the  purchase  thereof 
will  not  be  enjoined  from  cutting  timber  thereon,  unless  the 
cutting  is  continued  to  such  a  degree  as  to  render  the  land 
inadequate  as  a  security  for  the  payment  of  the  unpaid  pur- 
chase money.* '^ 

So,  an  injunction  bill  may  be  maintained  by  a  prior  judg- 
ment creditor  whose  judgment  is  a  lien  upon  the  land  against 
subsequent  judgment  creditors,  to  restrain  the  sale  by  them 
of  fixtures  severed  by  the  judgment  debtor  for  the  purpose  of 

14  Nelson  v.  Pinegar   (supra). 

15  See  Cooper  v.  Davis,  15  Conn.,  556,  561  (1843);  Nelson  v.  Pinegar,  30 
111.,  473,  481    (1863);   Brady  v.  Waldron,  2  John.  Ch.,  148   (1816). 

And  the  principle  is  the  same  in  the  case  of  an  injunction  bill  by  an  at- 
taching creditor  who  has  levied  his  attachment  upon  the  land  of  the 
debtor.     Camp  v.  Bates,  11  Conn.,  51,  57  (1835). 

[In  Williams  v.  Chicago  Exhibition  Co.,  188  111.,  19,  32  (1900),  the  court 
did  not  pass  upon  the  point  whether,  to  entitle  a  mortgagee  to  an  injunc-' 
tion  against  waste,  it  must  be  such  as  renders  the  security  inadequate  or 
insulficient,  saying  that  some  cases  seem  to  treat  "inadequate"  and  "im- 
paired ' '  as  convertible  terms,  and  holding  that  the  allegations  in  the  bill 
of  irreparable  injury,  that  interests  would  be  unduly  prejudiced,  etc., 
implied  that  by  the  removal  of  the  buildings  and  machinery  the  security 
would  be  insufficient.] 

ifi  Smith  V.  Price,  39  111.,  28  (1865). 

[The  vendee  can  not  be  restrained  from  removing  houses  erected  by  him, 
which  he  was  under  no  duty  to  erect,  as  long  as  he  complies  with  his 
contract,  and  is  in  possession,  and  it  is  not  shown  that  the  vendor's  security 
is  impaired.     Miller  v.  Waddingham,  91   Cal.,   377,   382    (1891).] 

IT  Van  Wyck  v.  Alliger,  6  Barb.,  507  (1849)  ;  Scott  v.  Wharton,  2  Hen. 
&  Mun.,  25  (1808).     [Core  v.  Bell,  20  W.  Va.,  169   (1882).] 

612 


CHAP.   XUI.]  INJUNCTION.  *411 

converting  them  into  personalty  and  enabling  such  subsequent 
creditors  to  le\y  thereon  and  sell  in  satisfaction  of  their  claims, 
on  the  ground  that  such  severance  is  a  fraud  upon  the  com- 
plainant, the  real  estate  upon  which  his  judgment  is  a  lien 
being  conceded  to  be  insufficient  for  his  security.^  ^ 

*An  injunction  is  also  an  appropriate  remedy  at  the  [*411] 
suit  of  a  patron  to  restrain  waste  by  a  rector  or  vicar  in  pos- 
session of  an  ecclesiastical  benefice.^  ^ 

As  an  incident  to  the  relief  by  injunction  against  future 
waste,  a  court  of  equity  will,  in  all  cases  where  an  injunction 
is  granted  to  restrain  such  future  waste,  grant  an  account  and 
decree  satisfaction  for  the  waste,  if  any,  already  done.^o  But 
where  an  injunction  is  not  granted,  neither,  in  general,  will 
an  account  be  ordered  of  the  waste  already  committed,  the 
maxim  being  "no  injunction,  no  account. "^i  In  Winship  v. 
Pitts,22  the  rule  was  laid  down  by  Walworth,  Ch.,  that  a  court 
of  chancery  only  interferes  to  prevent  future  waste,  except  in 
cases  where  the  complainant  has  no  remedy  at  law,  or  a  dis- 
covery is  necessary,  or  where  there  is  some  other  ground  for 
equitable    interference.      In    ordinary    cases    the    account    for 

isWitmer's  Appeal,  45   Penn.   St.,   455    (1863). 

See,  also,  Camp  v.  Bates,  11  Conn.,  51  (1835),  the  case  of  an  attach- 
ment levied  upon  land;  Webb  v,  Boyle,  63  N.  C,  271  (1869). 

[An  injunction  against  cutting  timber  will  not  be  continued  where,  if 
removed,  the  property  will  still  be  valuable  enough  to  secure  creditors. 
Portland  Bldg.  Ass'n  v.  Creamer,  34  N.  J.  Eq.,  107,  110   (1881).] 

"Sowerby  v.  Fryer,  L.  E.,  8  Eq.,  417  (1869);  2  Atk.,  217;  Barnard, 
399;  Amb.,  176;  1  Bos.  &  Pul.,  119.  See,  also,  2  Bro.  C.  C,  552;  3  Mer., 
427. 

20  Jesus  College  v.  Bloom,  3  Atk.,  262  (1745);  Ackerman  v.  Hartley,  8 
N.  J.  Eq.,  476  (1850) ;  Porch  v.  Fries,  18  N.  J.  Eq.,  204  (1867)  ;  Dennett  v. 
Dennett,  43  N.  H.,  499,  503  (1862);  Livingston  v.  RcynoldH,  26  Wend., 
115,  123  (1841).  [Powell  v.  Cheshire,  70  Ga.,  357,  360  (1883);  Bonncll  v. 
Allen,  53  Ind.,  130,  134  (1876);  Weatherby  v.  Wood,  29  How.  Pr.,  404, 
407  (N.  Y.,  1865) ;  Brown  v.  Sage,  11  Gr.  Ch.,  239  (Ont.,  1865).] 

[Although  one  having  a  contingent  interest  can  have  waste  by  a  lifo 
tenant  enjoined,  he  can  not  recover  damages  for  that  already  committed. 
Gordon  v.  Lowther,  75  N.  C,   193,  195    (1876).] 

21  Crockett  v.  Crockett,  2  Ohio  St.,  180,  186  (1853);  Parrott  v.  Palmer, 
3  Myl.  &  K.,  632,  640,  642  (1834);  Garth  v.  Cotton,  1  Vcs.  Sr.,  528 
(1750). 

22  3  Paige,  261   (1832).     [See  Ewing  v.  Rourke,  14  Ore.,  514  (1887).] 

618 


•412  THE  LAW   OF  FIXTURES,  [CIIAP.   XIII. 

waste  already  committed  is  merely  ineitlental  to  the  relief  by 
injunction  against  future  waste  and  is  directed  upon  the  prin- 
ciple of  preventing?  a  needless  multii)lieation  of  suits.  But 
where  there  is  some  distinct  ground  for  equitable  interference 
as  to  the  waste  already  done,  as  where  such  waste  is  of  such  a 
character  that  the  complainant  has  no  remedy  at  law  and  by 
the  denial  of  an  account  would  receive  great  injury,  it  will  be 
ordered,  though  no  injunction  is  allowed.^'^ 
[*412]  *But  on  a  bill  simply  to  restrain  waste  by  the  removal 
of  fixtures,  and  not  for  a  sale  or  to  foreclose  the  mortgage,  the 
mortgage  debt  not  being  due,  a  receiver  will  not  be  appointed, 
an  injunction  being  an  adequate  and  appropriate  remedy.^-* 

As  has  been  before  remarked,  injunctive  relief  in  restraint 
of  waste  is  generally  exercised  in  cases  where  there  is  privity 
of  title,  and  it  was  originally  confined  to  cases  founded  upon 
such  privity.  But  the  jurisdiction  has  been  gradually  enlarged ; 
and  now  it  is  well  settled  that  to  prevent  irreparable  mischiefs, 
or  to  suppress  multiplicity  of  suits  and  oppressive  litigation, 
a  court  of  equity  will  interfere  in  cases  of  trespasses  where 
there  is  no  privity.  But  if  the  trespass  be  merely  fugitive  and 
temporary,  and  one  for  which  adequate  compensation  can  be 
had  at  law,  equity  will  not  interfere.^^ 

Questions  respecting  fixtures  may  also  arise  for  determina- 
tion in  courts  of  equity  in  a  variety  of  other  ways, 

23Parrott  v.  Palmer,  3  Myl.  &  K.,  632  (1834);  Garth  v.  Cotton,  3  Atk., 
751    (1753);   s.  C,  1  Ves.  St.,  524,  546. 

Mines  and  collieries  constitute  an  exception  to  the  general  rule  on  the 
ground  that  working  them  is  a  kind  of  trade,  and  as  to  them  an  account  is 
granted  even  in  cases  where  no  injunction  would  lie.  Story  v.  Windsor,  2 
Atk.,  630  (1743);  Winchester  v.  Knight,  1  P.  Wms.,  406  (1717);  Pulteney 
V.  Warren,  6  Ves.,  73,  89  (1801);  Parrott  v.  Palmer,  3  Myl.  &  K.,  632, 
642   (1834). 

As  to  the  allowance  of  an  account  against  the  assets  of  one  deceased  in 
cases  of  equitable  waste  where  an  injunction  is  inapplicable,  see  Morris  v. 
Morris,  3  DeG.  &  J.,  323  (1858);  Lansdowne  v.  Lansdowne,  1  Madd.,  116 
(1815). 

24  Robinson  v.  Preswick,  3  Edw.  Ch.,  246  (1838).  [See  Collins  v.  Eichart, 
77  Ky.,  621,  623   (1879).] 

25  See  Jerome  v.  Ross,  7  John.  Ch.,  315  (1823);  2  Story's  Eq.  Jur, 
§  §918,  928,  et  seq.;  High  on  Inj.,  §458,  et  seq.,  where  the  cases  are  ex- 
haustively collected  and  considered.  A  further  consideration  of  the  subject 
here  would  be  beyond  the  scope  of  this  work. 

614 


CHAP.   XIII.]  INJUNCTION.  *413 

In  Lawi;on  v.  Lawton,-^  the  question  arose  as  to  the  right  to 
fixtures  as  between  the  executor  of  a  tenant  for  life  and  the 
remainderman,  upon  a  bill  filed  by  a  creditor  of  the  tenant 
for  life  to  have  a  certain  fire-engine  set  up  for  the  benefit  of  a 
colliery  by  the  tenant  for  life  considered  as  personal  estate  and 
applied  to  the  increase  of  assets  for  the  payment  of  debts.  In 
Dudley  v.  Warde,^'^  also,  the  bill  was  filed  by  the  executor  of  a 
tenant  for  life  or  in  tail  against  the  remainderman  to  have 
four  similar  engines  delivered  up  as  the  personal  estate  of  his 
testator.  ^ 

In  Franks  v.  Cravens,^^  an  engine,  boiler  and  other  machin- 
*ery  of  a  saw-mill  situated  on  land  covered  by  a  deed  [*413] 
of  trust  to  secure  a  debt  to  A.,  were  severed  and  removed  to 
another  tract  of  land  several  miles  distant,  and  while  there  a 
deed  of  trust  was  executed  upon  them  as  personalty  to  secure  a 
debt  to  another  creditor  and  they  were  subsequently  sold  and 
passed  into  the  possession  of  other  parties.  On  a  bilj  filed 
by  the  cestui  que  trust  in  the  first  deed  against  the  purchasers, 
who  had  been  in  possession  of  the  property  for  several  years, 
alleging  notice  of  plaintiff's  lien  on  the  mill,  engine,  etc.,  and 
that  defendants  were  endeavoring  to  delay  and  hinder  the 
plaintiff  in  the  collection  of  his  debt,  and  praying  that  the 
engine,  etc.,  might  be  surrendered  to  a  trustee  to  be  appointed 
by  the  court  in  the  place  of  the  former  trustee  who  had  left  the 
State,  on  the  ground  of  notice  of  the  plaintiff's  prior  lien,  and 
that  the  said  purchasers  had  only  an  equitable  title  cognizable 
in  a  court  of  equity,  it  was  held,  that,  as  there  was  nothing  to 
have  prevented  the  plaintiff  or  his  trustee  from  pursuing  and 
reclaiming  the  property  by  an  action  of  trover  or  detinue  in 
whosesoever  possession  it  was  found,  there  was  a  complete  reme- 
dy at  law,  and  therefore  equity  would  not  interfere, 

28  3  Atk.,  13   (1743). 

27Ambl.,  113   (1751). 

[Whore  defondanta  in  cjcetment  stand  upon  an  agreement  that  buildings 
should  remain  their  i)n)j)erty,  and  do  not  dispute  title  to  the  land,  and  make 
no  claim  for  the  value  of  the  improvements,  a  court  of  equity  has  juris- 
diction to  allow  the  removal  of  such  improvements.  Decell  v.  McRee,  35 
So.,   940    (Miss.,   1904).] 

28  6  W.   Va.,    185    (1873). 

615 


•414  TUE   L.V\V    OP    FIXTURES.  [CHAP.    XIII. 

Ill  Smith  V.  Altiek,-'-'  however,  on  a  petition  filed  to  foreclose 
a  mortj?age  given  to  the  vendor  in  pursuance  of  a  contract  for 
the  sale  by  him  of  a  "distillery  with  all  the  machinery,  fixtures, 
etc.,  thereto  belonging  or  appertaining,"  and  to  compel  the 
purchasers  of  fixtures  severed  and  removed  from  the  distillery 
by  the  vendee  while  in  possession  under  the  contract,  and  sold 
to  such  purchasers  both  before  and  after  the  execution  of  such 
mortgage  (the  premises  having  substantially  the,  same  descrip- 
tion in  the  contract  and  the  deed  and  mortgage  executed  in 
pursuance  thereof,  and  such  purchasers  having  notice  of  the 
plaintiff's  rights  under  the  contract  and  under  the  mortgage) 
to  pay  the  value  thereof  into  court,  etc.,  it  was  held,  that  such 
purchasers  being  chargeable  with  notice  of  the  rights  of  the 
vendor  who  had  been  guilty  of  no  laches,  were  liable  for  the 
value  of  such  fixtures  to  make  up  any  loss  to  the  vendor  on 
[*414]  *account  of  the  diminution  in  value  of  the  premises  by 
reason  of  their  removal,  the  vendor's  rights  in  this  respect  being 
considered  as  perfect  as  that  of  a  mortgagee  whose  mortgage 
had  been  recorded;  that  the  vendor  after  default  in  his  mort- 
gage might  join  such  purchasers  and  the  mortgagor  in  one  action 
to  foreclose  his  mortgage,  sell  the  mortgaged  premises,  and,  in 
the  event  of  their  being  insufficient,  subject  the  value  of  the 
fixtures  so  purchased  to  make  up  the  deficiency  or  loss  to  the 
mortgagee,  such  purchasers  being  liable  in  the  inverse  order 
of  time  in  which  the  purchases  were  made. 

In  eases  like  that  last  cited  where  the  removal  of  the  fix- 
tures renders  the  mortgage  security  inadequate,  the  purchaser 
of  the  fixtures  having  notice  of  the  rights  of  the  vendor  or 
mortgagee,  there  would  seem  to  be  no  obstacle  to  a  complete 
remedy  at  law  whether  such  mortgage  is  considered  as  a  con- 

29  24  Ohio  St.,  369  (1873).  [Tate  v.  Field,  56  N.  J.  Eq.,  35  (1897); 
see,  also.  Mercantile  Trust  Co.  v.  Chicago,  P.  &  St.  L.  E'y  Co.,  123  Fed., 
393   (U.  S.  C.  C.  A.,  111.,  1903).] 

[If  a  house  is  removed  from  mortgaged  premises,  the  lien  of  the  mort- 
gage follows,  and  the  house  may  be  sold  if  there  be  a  deficiency.  Dakota 
Loan  Co.  v.  Parmalee,  5  S.  D.,  341   (1894),] 

[See  Betz  v.  Muench,  13  Atl.,  622  (N.  J.,  1888),  as  to  the  right  of  a 
mortgagee  against  a  purchaser,  with  notice,  of  a  house  removed  by  the 
mortgagor.] 

616 


CHAP.   Xm.]  INJUNCTION.  *414 

veyanee  of  the  title  or  not  •,^^  and  in  States  where  the  distinction 
in  form  between  legal  and  equitable  remedies  is  kept  up,  the 
doctrine  of  Franks  v.  Cravens  is  probably  more  in  accordance 
with  principle.  The  two  cases,  may,  however,  probably  be 
distinguished  on  this  ground.^i 

80  See  section  1,  ante. 

31  See  further,  on  the  subject  of  eqviitable  remedies,  Bennett  v.  Nichols, 
12  Mich.,  22  (1863).  In  this  case  the  complainant's  intestate  had  been 
leased  premises  for  the  purpose  of  erecting  a  steam  saw-mill  thereon  (the 
lease  running  to  himself,  his  executors,  administrators  and  assigns  forever, 
reserving  no  rent  but  conditioned  to  erect  and  maintain  a  saw-mill),  had 
placed  thereon  a  frame  for  the  building  ready  for  erection,  but  which  except 
as  to  a  small  amount  of  material  had  not  been  put  up  before  his  death,  and 
he  had  contracted  and  partly  paid  for  an  engine  for  the  same.  After  his 
death  the  land  was  sold  by  his  lessor,  and  the  purchaser  together  with  the 
contractor  for  the  engine,  put  up  the  frame,  completed  and  commenced 
operating  the  mill.  Complainant  as  his  administrator  filed  his  bill  against 
them  to  compel  the  payment  of  the  value  of  the  mill  frame,  and  of  moneys 
paid  toward  the  engine  and  to  have  the  amount  declared  a  lien  upon  the 
premises.  Held,  that  his  claims  were  not  of  equitable  jurisdiction,  and  that 
his  remedy  was  at  law.  [See  Fisher  v.  Patterson,  99  111.  App.,  70  (1900), 
aflf'd  197  III.,  414  (1902);  Hamlin  v.  Parsons,  12  Minn.,  108;  Seibel  v. 
Siemon,  52  Mo.,  363,  370  (1873)  ;  Betz  v.  Muench,  13  Atl.,  622  (N.  J., 
1888);  Edler  v.  Hasche,  67  Wis.,  653,  661   (1887);  and,  ante,  p.  *47.] 

[Where  a  building  is  removed  from  mortgaged  lots  by  the  mortgagor, 
the  mortgage  remains  a  lien  upon  the  building  as  between  a  subsequent 
assignee  of  the  mortgage  and  one  who  has,  by  quitclaim  deed  and  without 
notice,  acquired  the  lot  upon  which  such  building  has  been  moved.  Part- 
ridge V.  Hemenway,  89   Mich.,  454   (1891).] 

[Where  a  dwelling-house  was  removed  from  mortgaged  land  to  another 
lot,  and  the  latter  lot  sold  to  one  without  notice,  the  equities  of  the 
grantee  and  of  the  mortgagee  are  equal,  and  the  mortgagee's  only  remedy 
is  at  law.    Vcrner  v.  Bctz.,  46  N.  J.  Eq.,  256  (1889).] 

[A  mortgagee  can  not  pursue  property,  when  sold  by  the  owner,  after  it 
is  annexed  to  and  forms  part  of  real  estate.  Harris  v.  Bannon,  78  Ky., 
568,  570  (1880).  In  this  case  cottages  had  to  bo  removed  to  make  way 
for  a  railroad  station,  and  there  was  no  evidence  that  the  security  had  been 
impaired.] 

[Whore,  between  the  time  of  a  foreclosure  sale  of  a  house  and  lot,  and 
the  expiration  of  the  equity  of  redemption,  the  house  is  stolon  and  annexed 
to  an  adjacent  lot,  whatever  right  to  an  oquitahle  lien  the  piirchasor  at  the 
foreclosure  sale  might  have  had  ii|inri  Ww  property  to  whicli  tho  iiouse  was 
removed,  will  be  lost  by  a  delay  during  which  such  property  is  acquired 
by  an  innocent  purchaser.  Fisher  v.  Patterson,  197  FIJ.,  414,  417  (1902), 
aff'g  99  111.  App.,   70    (1900).] 

617 


*-115  THE   LAW    OF    FIXTURES.  [CHAP.    XIII. 


III.    Replevin. 

It  is  well  settled  that,  if  fixtures,  timber  trees,  etc.,  consti- 
tutintr  during?  their  annexation  to  the  soil  a  part  of  the  realty, 
are  tortiously  severed  therefrom  and  removed  by  a  wron^-doer, 
or  by  a  tenant  without  the  consent  of  the  owner  of  the  fee, 
they  become,  at  the  option  of  the  owner  of  the  soil,  personal 
property;  and  may  as  such  be  recovered  by  him  in  an  action 
[*415]  *of  replevin.^  In  those  States  where  a  mortgage  is  con- 
sidered a  conveyance  of  the  fee,  the  same  rule  applies,  as  be- 

[While  the  removal  of  a  building  can  be  enjoined  by  the  mortgagee  if 
his  security  would  thereby  be  rendered  insufficient,  regardless  of  the  re- 
sponsibility of  the  mortgagor;  yet,  if  such  removal  has  been  made,  and 
the  mortgagee,  in  ignorance  thereof,  accepts  a  deed  of  the  premises  from 
the  mortgagor  in  full  payment  of  the  indebtedness  secured,  he  has  no 
remedy.     Triplett  v.  Parmlee,   16   Neb.,  649,  650    (1884).] 

1  Christian  v.  Dripps,  28  Penn.  St.,  278  (1857);  Harlan  v.  Harlan,  15 
Penn.  St.,  507  (1850);  Snyder  v.  Vaux,  2  Kawle,  423  (1830);  Cresson  v. 
Stout,  17  John.,  116  (1819);  Congregational  Soc'y  of  Dubuque  v.  Fleming, 
11  Iowa,  533  (1861);  Laflin  v.  Griffiths,  35  Barb.,  58  (1860);  Ogden  v. 
Stock,  34  111.,  522  (1864);  Sands  v.  Pfeiffer,  10  Cal.,  258  (1858);  Richard- 
son V.  York,  14  Me.,  74  (1837).  See,  also,  Heaton  v.  Findlay,  12  Penn.  St., 
307  (1849).  [United  States  v.  Cook,  86  U.  S.,  591  (1873);  McGinnis  v. 
Fernandes,  32  111.  App.,  424  (1889),  aff'd  135  111.,  69  (1890);  Moore  v. 
Combs,  24  Ind.  App.,  464  (1899) ;  Cent.  Br.  R.  R.  Co.  v.  Fritz,  20  Kan.,  430, 
438  (1878)  ;  Green  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.,  8  Kan.  App.,  611,  614 
(1899);  Strubbee  v.  Cincinnati  R'y,  78  Ky.,  481,  484  (1880);  Luce  v. 
Ames,  84  Me.,  133,  134  (1891);  United  States  v.  Steenerson,  50  Fed.,  504 
(U.  S.  C.  C.  A.,  Minn.,  1892)  ;  Mine  LaMotte  Co.  v.  White,  80  S.  W.,  356, 
360  (Mo.  App.,  1904)  ;  Tudor  Iron  Works  v.  Hitt,  49  Mo.  App.,  472,  479 
(1892);  Kirch  v.  Davies,  55  Wis.,  287,  294  (1882);  see,  also.  Sawyer  v. 
Middleborough  Co.,  13  Ky.  Law  R.,  550  (1891);  Nelson  v.  Graff,  12  Fed., 
389  (U.  S.  C.  C,  Mich.,  1882)  ;  Merrill  v.  Dixon,  15  Nov.,  401,  404  (1880)  ; 
Jones  V.  Bull,  90  Tex.,  187,  192   (1896).] 

They  may  also  as  a  matter  of  course  be  retaken  by  the  owner  or  his  agent 
without  process,  by  seizure  and  forcing  them  from  such  wrong-doer,  using 
no  more  violence  than  is  necessary  for  that  purpose.  State  v.  Elliot,  11  N. 
H.,  540   (1841). 

[Detinue  may  also  be  maintained.  Cooper  v.  Watson,  73  Ala.,  252,  254 
(1882).] 

[A  grantor,  who  is  given  the  right  to  occupy  the  premises  for  a  certain 
time,  is  the  tenant  of  the  grantee;  and  articles,  which  are  a  part  of  the 
realty,  are  let  for  use  on  the  premises  during  the  term.  If  wrongfully 
separated  by  the  tenant  they  become  the  personal  property  of  the  landlord, 

618 


CHAP.   Xm.]  REPLEVIN.  *415 

tween  the  mortgagee  and  the  mortgagor,  or  parties  claiming 
under  him,  severing  and  removing  fixtures  from  the  mortgaged 
premises  without  the  consent  of  the  mortgagee.^  And  since  a 
sheriff's  deed  on  the  sale  of  mortgaged  premises  takes  effect  by- 
relation  at  the  date  of  the  mortgage,  it  is  held  to  pass  fixtures 
annexed  subsequently  to  the  execution  of  the  mortgage;  and 
such  fixtures  if  wrongfully  severed  by  the  mortgagor  prior  to 
the  execution  of  such  deed  may  be  recovered  in  replevin  by  the 
purchaser  at  the  foreclosure  who  subsequently  obtains  a  sheriff's 
deed  of  the  premises.^    The  rule  first  above  stated  applies  irre- 

and  all  right  of  the  wrong-doer  therein  ceases,  and  the  landlord  can  bring 
replevin  at  once.    Leonard  v.  Stickney,  131  Mass.,  541,  545  (1881).] 

[A  vendor  of  real  estate  under  contract,  the  vendee  being  in  default, 
can  not  maintain  replevin  for  a  house  built  by  the  vendee  and  afterwards 
removed  from  the  land,  until  he  has  taken  such  steps  as  will  entitle  him 
to  possession  of  the  land.  Ellsworth  v.  McDowell,  44  Neb.,  707,  713 
(1895).] 

[Where  railroad  iron  was  sold  under  an  execution  upon  a  void  judgment, 
and  bought  by  the  owner  of  the  land  to  which  it  was  attached,  who  re- 
moved it,  and  placed  it  in  piles,  and  claimed  ownership  for  two  years,  he 
is  protected  by  the  statute  of  limitations.  Carter  v.  Pratt,  23  Kan.,  613, 
617  (1880).] 

2  See  ante,  p.  *47,  and  note;  also  Cresson  v.  Stout,  17  John.,  116  (1819), 
replevin  by  mortgagee  in  possession  as  against  a  subsequent  levy  by  an 
execution  creditor.  [Jones  v.  Ramsey,  3  III.  App.,  303,  310  (1878)  ;  see 
Scottish  Am.  Co.  v.  Sexton,   26  Ont.,  77,   79    (1894).] 

[A  mortgagor,  without  the  knowledge  of  the  mortgagee,  moved  a  house 
from  the  mortgaged  lot  to  another  lot  owned  by  the  former,  and  subse- 
quently sold  the  house  to  the  party  whom  the  mortgagor  had  originally 
employed  to  move  it.  The  latter  proceeded  to  move  it  to  a  lot  of  his  own ; 
and,  while  it  was  detached,  the  mortgagee  replevied  it.  Held,  that  the 
mortgagee  could  recover  the  house,  as  his  title  had  not  been  extinguished; 
and  the  purchaser  could  not  claim  to  be  innocent,  and  tlie  house  was  per- 
sonal property  while  severed.     Dorr  v.  Dudderar,  88  111.,  107,  109  (1878).] 

[Where  the  mortgagee  has  an  order  from  the  mortgagor  to  cut  the  hay 
upon  the  mortgaged  premises,  and  apply  the  proceeds  upon  the  mortgage 
note,  he  ctm  maintain  replevin  for  grass  cut  and  carried  away  by  a 
stranger,  even  though  he  might  recover  full  compensation  in  a  pending  suit 
for  trespass.     Burlcy  v.  Tike,  62  N.  H.,  495,  497    (1883).] 

3  Sands  v.  PfeiCfcr,  10  Cal.,  258  (1858).  See,  also,  Laflin  v.  Griffiths,  35 
Barb.,   58    (1860). 

[But  a  purchaser  of  land  at  foreclosure  sale  can  not,  before  the  period 
of  redemption  has  expired,  bring  replevin  for  a  house  removed  from  surli 
land  aftor  the  sale,  as  he  has  not  the  right  to  immediate  possession.  Peo- 
ple'a  fciav.  Jbauk  v.  Jones,  114  Cal.,  422   (1896).] 

619 


•41G  THE   LAW    OF   FIXTURES.  [CIIAP.    XIII. 

spoetive  of  the  physical  character  of  the  thing  so  severed  and 
removed;  thus,  houses  so  severed  and  removed  are  properly  sub- 
jects of  replevin,  though  a  house  is  prima  facie  a  parcel  of  the 
realty.-*  And  the  action  lies  so  long  as  the  house  or  other  article 
can  be  identified  and  is  not  permanently  annexed  to  and  made  a 
[*41()]  part  *of  other  realty.^''*     It  is  no  cause  of  demurrer  to  a 

[Execution  purchasers  can  maintain  replevin  for  timber  severed  between 
the  date  of  sale  and  the  delivery  of  the  sheriff's  deed.  So  held  in  Michi- 
gan. Marquette,  H.  &  O.  R.  R.  Co.  v.  Atkinson,  44  Mich.,  166,  168 
(1880).] 

*  Ogden  V.  Stock,  34  III.,  522  (1864) ;  Huebschmann  v.  McHenry,  29  Wis., 
655  (1872).  See,  also,  Mills  v.  Eedick,  1  Neb.,  437  (1871).  [Dorr  v. 
Dudderar,  88  111.,  107,  108  (1878);  Matzon  v.  Griffin,  78  111.,  477,  478 
(1875)  ;  Bridges  v.  Thomas,  8  Okla.,  620,  621  (1899)  ;  see,  also.  Cutter  v. 
Wait,   131   Mich.,  508,  509    (1902).] 

[Where  a  trespasser  has  begun  to  remove  a  building,  replevin  can  be 
maintained  therefor  by  the  land-owner,  although  it  lies  about  one-fourth 
upon  the  plaintiff's  land.     Luce  v.  Ames,  84  Me.,  133,  134   (1891).] 

5  Ogden  V.  Stock,  34  111.,  522  (1864)  ;  Davis  v.  Easley,  13  111.,  192  (1851)  ; 
Huebschmann  v.  McHenry,  29  Wis.,  655  (1872).  [Richards  v.  Morey,  133 
Cal.,  437  (1901);  Dorr  v.  Dudderar,  88  111.,  107,  108  (1878);  Hacker  v. 
Munroe,  176  111.,  384  (1898);  Fifield  v.  Farmers'  Nat.  Bank,  148  111.,  163, 
173  (1893);  Ricketts  v.  Dorrel,  55  Ind.,  470  (1876);  Gill  v.  DeArmant, 
90  Mich.,  425,  430  (1892);  McDaniel  v.  Lipp,  41  Neb.,  713,  716  (1894); 
see,  also,  Scottish  Am.  Co.  v.  Seston,  26  Ont.,  77,  79   (1894).] 

[A  contract  for  the  purchase  of  land  was  entered  into,  which  provided 
for  the  erection  of  a  dwelling-house  by  the  grantee  which  was  to  remain 
upon  the  premises.  A  house,  sixteen  by  twenty-four,  resting  upon  ten 
blocks  of  wood,  was  built;  but,  after  default  in  payment  upon  the  contract, 
was  moved  into  the  highway,  and  sold  to  an  assignee  of  the  contract,  who 
moved  it  to  a  tract  of  his,  and  placed  it  upon  a  stone  foundation  which 
was  thereon,  intending  to  convert  it  into  real  estate,  but  which  could 
easily  be  removed  without  injury  to  the  house  or  to  the  land.  Held, 
that  the  grantor  could  maintain  replevin.  Central  Branch  R.  R.  Co.  v. 
Fritz,  20  Kan.,  430  (1878).  In  this  case  is  a  review  of  the  other  cases 
upon  the  subject;  and  it  was  further  said  that  where  a  house  and  founda- 
tion are  not  built  at  the  same  time,  as  parts  and  portions  of  a  single  whole, 
placing  the  house  upon  a  stone  foundation  is  not  sufficient  to  make  it  a  part 
of  the  realty,  any  more  than  placing  it  upon  a  stone  pavement  or  upon 
the  earth.] 

[Where  a  house  is  removed  upon  the  land  of  a  third  party,  and  there 
is  no  privity  of  title  between  the  ownership  of  the  house  and  the  ownership 
of  such  land,  replevin  will  lie.  Michigan  Mut.  Ins.  Co.  v.  Cronk,  93  Mich., 
49,   51    (1892).]' 

See,  however,  Reese  v.  Jared,  15  Ind.,  142  (1860),  which,  however,  is  to 

620 


CHAP.   XUI.]  REPLEVIN.  *416 

declaration  in  replevin  for  a  saw-mill,  steam-engine  with  fixtures, 
a  barn,  shingle-mill,  office  and  shed,  described  in  the  declaration 
as  goods  and  chattels,  that  they  are  not  personal  chattels;  for 
although  these  things  ordinarily  are  fixtures  and  a  part  of  the 
realty,  yet  they  may  be  personal  property;  and  being  described 
as  goods  and  chattels,  whether  they  are  so  or  not  is  a  matter  of 
evidence.^  But  where  the  plaintiff  in  his  affidavit  for  a  writ 
of  replevin  stated  that  he  was  lawfully  entitled  to  the  possession 
of  a  certain  steam  saw-mill  building,  together  with  all  the  appa- 

be  distinguished  from  the  above  cases  on  the  ground  that  in  this  case  the 
party  upon  whose  lot  the  house  was  removed  was  not  a  trespasser,  but  had 
bought  the  house  in  good  faith  from  the  person  who  had  built  it  on  the  lot 
of  the  plaintiff,  and  had  paid  for  it;  and  because  the  house  had  in  this 
case  been  set  upon  a  permanent  brick  foundation.  [See  Fisher  v.  Patter- 
son,  197  111.,  414,  417    (1902).] 

[Where  a  house,  which  is  a  part  of  the  realty,  is  sold  as  personal  prop- 
erty, and  removed  to  another  lot  belonging  to  the  purchaser,  where  it  is 
placed  upon  brick  pillars  sunk  into  the  ground  with  the  intention  of  mak- 
ing it  a  residence  for  the  purpose  of  sale,  it  becomes  real  property,  although 
an  action  of  trespass  might  lie  for  its  removal.  Salter  v.  Sample,  71  111., 
430,    433    (1874).] 

[Replevin  will  not  lie  for  a  wooden  partition.  McAuliffe  v.  Mann,  37 
Mich.,   539,   542    (1877).] 

[Detinue  will  not  lie  for  the  recovery  of  machines  which  are  a  part  of 
the  realty.  McFadden  v.  Crawford,  36  W.  Va.,  671,  680  (1892).  Nor 
for  log  buildings,  and  a  ferry-boat  with  cables.  Stimson  v.  Smith,  1 
N.  W.  Ter.,  109   (1889).] 

BBrearley  v.  Cox,  24  N.  J.  Law,  287  (1854). 

["Rails,  as  well  as  a  string  of  fence,  may  be  personal  property." 
Fahnestock  v.  Gilham,  77  111.,  637,  639    (1875).] 

[It  is  a  matter  of  defence  to  show  that  a  corn-crib  is  real  property. 
Smith  V.  Stanford,  62  Ind.,  392,  395   (1878).] 

[Where  replevin  was  brought  for  "one  frame  building  now  in  process  of 
erection,"  etc.,  and  the  action  was  sent  to  another  court  whore  the  plaintiff 
described  the  property  as  "all  the  luinlur,  laths,  shingles,  nails,  joists, 
boards,  and  materials  on  lot,"  etc.,  "being  the  same  chattels  and  personal 
property  mentioned  and  described  in  the  original  petition  filed  in  this  cause, 
wliich  [)etiti()n  is  liercby  made  a  part  hereof,"  it  was  lielil  that  this  was  not 
a  departure;  and  that  the  defendant  by  joining  issue  waived  the  error,  if 
any.     Waters  v.  Reuben,  16  Neb.,  99   (1884).] 

[Where  a  defendant,  in  his  ploa<lings,  avers  that  buildings,  erected  by 
the  plaintiff  upon  lands  of  anotlier  witliont  permission,  were  "owned,  pos- 
sessed and  occupied"  by  such  plaintiff,  lie  is  not  at  liberty  to  deny  such 
averment,  nor  prove  that  such  buildings  became  the  property  of  the  land- 
owner.    Myrick  v.  Bill,  3  Dak.,  284   (1883).] 

621 


•41C  THE   LAW   OF   FIXTURES,  [CHAP.   XIII. 

ratus,  macliinory  and  tackling  belonging  to  the  same,  consisting 
of  a  steam-engine,  etc.,  describing  the  land  on  which  such  mill 
was  situated,  but  not  stating  that  the  property  in  question  was 
personal  estate,  but  simply  alleging  that  plaintiff  was  the  owner 
of  the  mill  and  appendages  without  showing  the  circumstances 
under  which  the  same  were  put  on  the  land,  the  affidavit  was 
held  defective  and  the  proceedings  dismissed.^  Where  a  house 
or  other  fixture  has  been  constructively  severed  from  the  realty 
and  treated  by  the  parties  in  interest  as  personalty,  it  is  the 
subject  of  an  action  of  replevin."^     So,  where  one  mortgages 

eChatterton  v.  Saul,  16  111.,   149    (1854). 

[The  bare  recital  "that  the  plaintiff  is  the  owner  of  the  following  de- 
scribed personal  property,  to  wit:  One  frame  two-story  building  about  28 
feet  wide  by  30  feet  long,  and  now  located,"  etc.,  is  a  mere  conclusion. 
It  appears  to  be  an  action  to  recover  real  estate  by  replevin.  The  facts 
should  be  pleaded,  so  that  the  court  may  determine  whether  the  action  is 
properly  brought.  Demurrer  sustained.  Bridges  v.  Thomas,  8  Okla.,  620 
(1899).] 

[An  engine  and  gin  machinery  were  sold  under  an  attachment  as  per- 
sonal property.  The  purchaser  of  the  land  at  foreclosure  sale,  to  whom 
the  engine  and  machinery  passed  as  real  estate,  in  a  trial  of  the  right  of 
property,  sought  summary  judgment  against  the  sureties  upon  a  statu- 
tory claim  bond.  Held,  that,  as  the  purchaser  maintained  his  title  by 
proving  that  the  property  was  real  estate,  without  showing  that  by  sever- 
ance it  had  become  personalty,  he  could  not  enter  judgment  upon  the  bond. 
Bull  v.  Jones,  9  Tex.  Civ.  App.,  346   (1895).] 

7Foy  V.  Eeddick,  31  Ind.,  414  (1869);  Hensley  v.  Brodie,  16  Ark.,  511 
(1855).  [Wells  V.  Merle  &  Heaney  Mfg.  Co.,  66  111.  App.,  292,  298  (1896)  ; 
District  Township  of  Corwin  v.  Moorehead,  43  Iowa,  466,  469  (1876); 
Commissioners  of  Eush  County  v.  Stubbs,  25  Kan.,  322,  325  (1881);  Duke 
V.  Shackleford,  56  Miss.,  552  (1879);  McDaniel  v.  Lipp,  41  Neb.,  713,  716 
(1894);  Wheeler  v.  McFerron,  33  Ore.,  22,  23  (1898);  Page  v.  Urick,  31 
Wash.,  601,  603  (1903)  ;  Fitzgerald  v.  Anderson,  81  Wis.,  341,  344  (1892)  ; 
Scarth  v.  Ontario  Power  Co.,  24  Ont.,  446  (1894)  ;  see,  also,  Seidel  v. 
Cornwell,  166  Mo.,  51,  55  (1901);  Waters  v.  Eeuber,  16  Neb.,  99,  102 
(1884).] 

[A  portable  engine  on  wheels,  capable  of  being  moved  from  place  to 
place,  and  some  old  irons  of  a  saw-mill  that  had  been  burned,  are  personal 
property  and  subject  to  a  personal  action.  Kennedy  v.  Clayton,  29  Ark., 
270,  278   (1874).] 

[Eeplevin  can  be  maintained  by  the  vendor  of  brewery  fixtures  under  a 
conditional  contract  of  sale,  although  attached.  Ott  v.  Specht,  8  Hous., 
61,  73   (Del.,  1887).] 

[Where  a  landlord  attaches  a  steam-engine  as  the  personal  property  of 
his  tenant,  it  is  an  admission  of  record,  whether  conclusive  is  not  deter- 

622 


CHAP.   Xni.J  REPLEVIN.  ♦416 

articles  annexed  to  the  realty,  describing  them  as  goods  and 
chattels,  all  persons  claiming  under  him  will  be  estopped  from 
denying  that  they  are  goods  and  chattels  as  against  persons 
claiming  under  such  mortgage,  without  reference  to  the  question 
how  they  are  annexed  to  the  soil ;  and  in  such  a  case  as  between 
these  parties  such  annexations  are  proper  subjects  of  an  action 
of  replevin.^ 

mined,  that  the  property  belongs  to  the  tenant,  and,  necessarily,  that  it  is 
not  a  part  of  the  realty.  Hewitt  v,  Watertown  Steam  Engine  Co.,  65  111. 
App.,  153,  158  (1895).] 

[A  stave-machine,  consisting  of  a  line-shaft  fastened  by  hangers  bolted 
to  joists  in  a  mill,  used  to  convey  power  thereto  from  an  engine,  some 
belting,  an  equalizer  and  a  bucker,  is  personal  property  for  which  replevin 
will  lie.     Balliett  v.  Humphreys,  78  Ind.,  388,  391    (1881).] 

[Where  a  son  erects  houses  by  permission  upon  land  of  his  father,  which 
the  father  intends  to  give  his  son,  and  the  houses  are  sold  by  the  son,  they 
are  personal  property,  and,  as  such,  can  not  be  recovered  after  the  statute 
of  limitations  has  run.    Dominick  v.  Farr,  22  S.  C,  585  (1885).] 

[However,  in  Eddy  v.  Hall,  5  Colo.,  576,  581   (1881),  it  was  held  that  a 
copartnership  agreement  that  one  of  the  partners  is  to  receive  rental  for 
certain  real  estate,  and  that  the  value  of  buildings  permanently. attached 
thereto  is  to  be  credited  to  him  upon  the  firm  books,  and  that,  at  the  termi- 
nation of  the  copartnership,  he  is  to  take  them  back  at  a  reduced  price, 
and  a  sale  by  him  after  the  termination  of  the  copartnership,  is  not  such 
a  constructive  severance  as  to  make  the  buiklings  personal  property.] 
8  Ballon  V.  Jones,  37  III.,  95   (1865).     [See,  ante,  p.  *346.] 
Eeplevin  for  taking  the  goods  and  chattels,  to  wit:    one  lime-kiln,  etc.,  of 
the  plaintiff.     Avowry  for  rent  in  arrear.     Plea  in  bar,  that  the  lime-kiln 
was  affixed  to  the  freehold,  and  as  such  exempt  from  distress.     Demurrer 
thereto.     Held,  that  the  plea  in  bar  was  ba<l,  because  it  was  a  departure 
from  the  declaration  which  treated  the  lime-kiln  as  a  chattel,  while  the  plea 
treated  it  as  affixed  to  the  freehold.     Judgment  for  defendant.     Niblet  v. 
Smith,  4  Term.,  504  (1792).     See,  also.  Lane  v.  Dixon,  3  C.  B.,  776  (1847). 
[In    an    action    of    replevin    for    mill    machinery,    where    the    sheriff!    has 
returned  that  he  replevied  the  goods,  and  the  defendants  plead  non  cepit, 
and  property,  they  can  not  contend  that  the  machinery  was  a  part  of  the 
freeholfl.     Alexander  v.  Cowie,  19  N.  Brunsw.,  599    (1880).] 

[Where  a  fixture  is  severed  from  the  soil  so  as  to  give  to  it  tlio  character 
of  personalty,  and  litigation  in  regard  thereto  occurs  both  before  and  after 
severance,  its  character  at  the  time  the  plaintiff'  is  required  to  appear  in 
court  determines  the  procedure;  and  the  fact  that  the  mortgagee  of  the 
land,  before  severance,  claims  the  fixtures  as  real  estate,  (loos  not  wtop 
him  after  severance  in  another  suit  from  claiming  it  as  personal  property. 
Jones  v.  Bull,  90  Tex.,  187,  194   (1896).] 

[Treating  boilers  as  a  part  of  the  real  estate  by  filing   a  claim   for  a 

fi23 


*417  THE   L.VW   OF   FIXTURES.  [CHAP.    XIII. 

[*417]  *A  writ  of  replevin,  however,  is  effectual  for  the  de- 
livery of  personal  property  only,"'  and  furnishes  no  justification 
to  an  officer  who  under  it  severs  and  delivers  part  of  the  realty.^ "^ 
Neither  does  replevin  lie  by  a  tenant  or  his  assignee  against 
the  landlord  for  an  unremoved  fixture,  whether  annexed  for 

lien  upon  the  real  estate  upon  which  they  are  located,  which  claim  is 
afterwards  released  and  not  followed  by  suit,  will  not  prevent  such  claim- 
ants from  subsequently  bringing  an  action  of  replevin  for  such  boilers  as 
personal  property.     Hacker  v.  Munroe,  56  111.  App.,  53li,  540   (1894).] 

[Where  a  mortgagee,  having  dismissed  a  suit  in  repleviln  against  a  chat- 
tel mortgagee  for  fixtures,  remains  in  possession  thereof  and  is  sued  upon 
his  replevin  bond,  he  should  be  permitted,  under  the  statute,  to  show  in 
mitigation  of  damages  that  the  property  could  not,  from  its  nature,  be  cov- 
ered by  a  chattel  mortgage;  and  he  is  not  estopped  by  the  fact  that  his 
affidavit  for  the  writ  called  it  personal  property.  Howell  v.  Barnard,  32 
111.   App.,   120    (1889).] 

[A  chattel  mortgagor  of  log  houses  and  a  ferry-boat  and  cables  is  not 
estopped  from  asserting  that  they  are  real  estate.  Stimson  v.  Smith,  1 
N.  W.  Ter.,  109  (1889).] 

oVausse  v.  Eussel,  2  McCord,  329  (1823).  [See  Camp  v.  Charles 
Thatcher  Co.,  75  Conn.,  165,  170  (1902);  Oskamp  v.  Crites,  37  Neb.,  837 
(1893);    McCormick  v.  Eiewe,   14  Neb.,  509    (1883).] 

loKoberts  v.  Dauphin  Deposite  Bank,  19  Penn.  St.,  71  (1852).  [See  Bull 
V.  Jones,  9  Tex.  Civ.  App.,  346,  349  (1895)  ;  Alexander  v.  Cowie,  19  N. 
Brunsw.,  599   (1880).] 

[A  contrary  view,  however,  is  taken  in  Sample  v.  Broadwell,  87  111.,  617, 
620  (1878).  Said  Sheldon,  J.,  in  delivering  the  opinion  of  the  court: 
"Although  ordinarily  a  dwelling-house  is  attached  to,  and  forms  a  part  of, 
the  realty,  and  is  to  be  presumed  such,  there  may  be  circumstances  existing 
in  which  it  will  be  a  personal  chattel,  and  one  may  own  and  have  belonging 
to  him  as  his  personal  property,  a  house  standing  upon  the  land  of  another; 
and  the  latter  was  what  the  officer  had  the  right  to  believe  and  act  upon  as 
the  condition  here.  The  writ  recited  upon  its  face  that  the  plaintiff 
suing  it  out  had  made  affidavit  before  the  clerk  that  the  house  belonged 
to  him  as  his  goods  and  chattels,  and  was  wrongfully  detained  by  the 
defendant,  and  therefore  the  sheriff  was  commanded  to  cause  the  said 
goods  and  chattels  to  be  replevied  and  delivered  to  the  plaintiff.  Surely  it 
was  not  for  the  sheriff  to  set  up  against  this  the  ordinary  presumption 
that  the  house  was  part  of  the  realty,  and  act  thereon,  and  refuse  to  obey 
the  writ.  It  did  not  belong  to  him  to  institute  an  inquiry  whether  or 
not  the  house  was  the  personal  property  of  the  plaintiff,  and  execute  the 
writ  or  not,  according  as  he  found  the  result.  But  he  might  rest  upon 
the  writ  itself  as  his  sufficient  authority,  and  execute  its  command  by  the 
delivery  of  the  property  to  the  plaintiff,  and  if  the  defendant  should 
thereby  be  wrongfully  injured,  his  resort  for  redress  should  be  to  him  who 

624 


CHAP.    XIII.]  REPLEVIN.  *418 

purposes  of  trade  or  otherwise;  so  long  as  it  remains  annexed, 
it  is  a  part  of  the  freehold.^  ^  A  title  deed,  however,  though  so 
connected  with  and  essential  to  the  ownership  of  real  estate 
that  it  descends  with  it  to  the  heir,  is  for  the  purpose  of  its 
recovery  by  a  civil  remedy,  a  personal  chattel  and  hence  recov- 
erable in  replevin.i2 

The  rule  stated  at  the  beginning  of  this  section  is  subject  to 
a  qualification  arising  out  of  the  rule  of  law  that  the  title  to 
real  property  can  not  be  tried  in  a  transitory  action.  The  rule 
on  this  subject  was  thus  stated  by  Field,  J.,  in  Halleck  v. 
Mixer  ^3:  "The  plaintiff  out  of  possession  can  not  sue  for 
*property  severed  from  the  freehold,  where  the  defend-  [*418] 
ant  is  in  possession  of  the  premises  from  which  the  property  was 
severed,  holding  them  adversely,  in  good  faith,  under  claim 
and  color  of  title; — in  other  words:  the  personal  action  cannot 
be  made  the  means  of  litigating  and  determining  the  title  to 

sued  out  the  writ,  and  not  to  the  ministerial  oflScer  who  obeyed  the  man- 
date of  the  writ."] 

[Replevin  will  not  lie  for  a  coffin  and  its  contents  after  interment;  and 
a  sheriff  should  refuse  to  obey  such  a  writ.  There  is  no  property  in  such 
things.     Guthrie  v.  Weaver,  1   Mo.  App.,   136,   141    (1876). 1 

11  Brown  v.  Wallis,  115  Mass.,  156  (1874).  The  article  in  question 
(which  was  not  in  terms  decided  to  be  a  trade  fixture,  but  only  so  consid- 
ered to  show  that  in  the  most  favorable  aspect  of  the  case  the  plaintiff 
could  not  recover  in  that  form  of  action)  was  a  counting-room  put  into  a 
store  by  a  tenant,  and  consisted  of  a  framework  sheathed  and  paneled 
on  both  sides  and  fastened  to  the  floor  and  walls  by  nails  so  securely  as  to 
require  the  use  of  a  crow-bar  to  remove  it ;  and  it  was  necessarily  sepa- 
rated into  three  pieces  before  it  could  be  removed  by  the  sheriff. 

See,  also,  Folger  v.  Kenna,  24  La.  Ann.,  436  (1872),  where  in  an  action 
for  the  recovery,  separate  from  th('  land,  of  the  double  iron  doors  and  iron 
lining  of  a  brick  vault  attached  with  plaster  to  the  walls  of  a  house  and 
to  the  soil  by  a  brick  foundation,  it  was  held  that  they  were  not  recoverable 
separate  from  the  premises  in  which  located.  [But  see  Hamilton  v.  Stew- 
art, 59   111.,  330,   333   (1871).] 

12  Wilson  V.  Rybolt,  17  Ind.,  301  (1861).  Sec,  also,  Atkinson  v.  Baker,  4 
Term,  2l'!»  (1791).  [See,  ante,  p.  "230;  and  King  v.  Gilson,  32  111.,  348, 
354    (1863).] 

[It  is  otherwise  where  there  is  a  dispute  about  its  delivery.  PasterficM 
V.  Sawyer,  43  S.  E.,  799  (N.  C,  1903)  ;  see,  also,  Pasterfield  v.  Sawyer, 
45  S.  E.,  524   (N.  f'.,   1903).] 

13  16  Cal.,  574    (1860). 

^0  625 


•418  THE   LAW   OF   FIXTURES.  [CIIAP.    XIII. 

the  real  property,  as  between  conflicting  claimants.^ ^  But  this 
rule  does  not  exclude  the  proof  of  title  on  the  part  of  the  plain- 
tiff in  other  cases,  for  it  is,  as  we  have  already  observed,  upon 
such  proof  that  the  right  of  recovery  rests.  It  is  because  the 
plaintiff  owns  the  premises,  or  lias  the  right  to  their  possession, 
that  he  is  entitled  to  the  chattel  which  is  severed,  and  that  must 
of  course  be  in  the  first  instance  established.  A  mere  intruder 
or  trespasser  is  in  no  position  to  raise  the  question  of  title  with 
the  owner  so  as  to  defeat  the  action. "  ^  ^    The  rule  above  stated 

14  See  Brown  v.  Caldwell,  10  S.  &  R.,  114  (1823) ;  Heaton  v.  Findlay,  12 
Penn.  St.,  307  (1849);  Powell  v.  Smith,  2  Watts,  126  (1833);  Snyder  v. 
Vaux,  2  Eawle,  423  (1830);  Anderson  v.  Haplcr,  34  111.,  436  (1864);  and 
the  eases  cited  in  the  next  note  (infra).  [Hines  v.  Good,  128  Cal.,  38,  40 
(1900);  Smith  v.  Cunningham,  67  Cal.,  262,  263  (1885);  Hooker  v. 
Latham,  118  N.  C,  179,  186  (1896);  Eenick  v.  Boyd,  99  Pa.  St.,  555,  558 
(1882);  Weed  v.  Hall,  101  Pa.  St.,  592,  595  (1882);  see,  also,  Caldwell  v. 
Custard,  7  Kan.,  303   (1871).] 

[A  trespasser  can  not  bring  replevin  for  a  house.  Where  a  vendor  of 
real  estate  under  contract  had  some  repairs  made'  to  the  foundation  of  a 
house  thereon,  after  default  by  the  vendee,  such  house  being  locked  and 
containing  goods  of  the  vendee,  the  vendee  being  temporarily  absent,  is  not 
retaking  possession  so  as  to  enable  the  vendor  to  maintain  replevin  for 
the  house.     Ellsworth  v.  McDowell,  44  Neb.,  707,  711    (1895).] 

[A  purchaser  of  a  building  from  a  landlord  can  not  bring  replevin  for 
the  same  against  a  tenant  in  possession.  Eiewe  v.  McCormick,  11  Neb., 
261.] 

[An  action  of  replevin  having  been  brought  for  wood  and  ties  cut  and 
removed  from  land,  it  was  held  that,  upon  the  request  of  the  defendant, 
under  his  averment  that  neither  party  was  in  possession  of  the  land,  and 
that  the  plaintiff  claimed  under  an  illegal  tax  purchase,  the  court  properly 
transferred  the  cause  to  equity  and  canceled  the  plaintiff's  tax-deed  and 
awarded  the  wood  and  ties  to  the  defendant.  Eogers  v.  Kerr,  42  Ark.,  100, 
102    (1883).] 

[The  owner  of  the  freehold  can  not  maintain  detinue  if,  at  the  time  of 
severance,  he  had  not  actual  or  constructive  possession  of  the  land.  Cooper 
V.  Watson,  73  Ala.,  252,  254   (1882).] 

15  Citing  Harlan  v.  Harlan,  15  Penn.  St.,  507  (1850).  [Washburn  v. 
Cutter,  17  Minn.,  361;  see,  also,  Cutter  v.  Wait,  91  N.  W.,  753  (Mich., 
1902).] 

The  rule  above  laid  down  has  been  approved  in  subsequent  cases:  Page 
V.  Fowler,  28  Cal.,  605  (1865);  s.  c,  37  Id.,  100,  where  it  was  held  that 
replevin  for  hay  cut  on  public  lands  could  not  be  maintained  by  a  prior  pos- 
sessor against  one  in  adverse  possession  claiming  a  pre-emption  right  when 
he  Cflt  the  bay;  S.  P.  in  Page  v.  Fowler,  39  Cal.,  412  (1870) ;  Stocjkwell  v. 

62a 


CHAP.    Xin.]  REPLEVIN.  *418 

Phelps,  34  N.  Y.,  363  (1866).  See,  also,  the  rule  of  Halleek  v.  Mixer, 
explained  in  Kimball  v.  Lohmas,  31  Cal.,  154  (1866),  which  was  in  turn 
explained  in  Page  v.  Fowler,  39  Cal.,  412,  417.  In  Kimball  v.  Lohmas,  the 
defendants  were  in  the  adverse  possession  of  the  land  at  the  time  the  wood 
was  cut,  but  had  no  title  or  color  of  title;  and  in  39  Cal.,  412,  418,  it  is 
said  that  all  the  eases  show  that  there  must  be  something  more  than  a  mere 
assertion  of  title,  and  that  the  court  in  such  eases  will  look  into  the  case  to 
see  if  there  is  in  reality  a  claim  of  title  to  try.  To  the  last  point,  see,  also, 
Harlan  v.  Harlan,  supra,  where  it  was  said  by  Eogers,  J.:  "  It  is  not  the 
actual  possession,  but  it  is  the  actual  adverse  possession  of  a  person  who 
claims  title  to  it,  that  is  the  criterion."  *  *  *  "The  mere  assertion  of 
a  title  would  be  nothing.  The  court  looks  to  the  substance,  and  where  it 
appears  that  in  truth  it  is  a  trial  of  title,  then  it  is  properly  ruled  that 
replevin  is  not  the  proper  action,  but  that  it  must  be  tried  in  another 
form.  Beyond,  the  cases  do  not  go,  nor  does  public  policy  require  they 
should. ' ' 

In  Kimball  v.  Lohmas,  above  referred  to,  Sanderson,  J.,  said:  "Adverse 
possession  is  of  different  kinds:  First,  where  the  possession  is  taken  by 
bow  and  spear  without  color  of  title,  but  with  the  intent  to  claim  the  fee 
exclusive  of  any  other  right,  and  to  hold  it  against  all  comers,  which  is  the 
kind  found  in  the  present  cases;  second,  where  the  possession  is  taken  under 
a  claim  of  title  founded  upon  a  written  instrument,  as  a  conveyance,  or 
upon  the  decree  or  judgment  of  a  court  of  competent  jurisdiction.  The 
first  is  suflScient  to  put  the  Statute  of  Limitations  in  motion,  and,  at  the 
expiration  of  five  years,  vest  in  the  usurper  a  right  under  the  Statute 
which  is  equivalent  to  title;  but  until  the  Statute  has  run  he  is  to  the  true 
owner  a  mere  intruder,  without  right.  It  can  not  be  said  in  any  just 
sense  that  as  between  him  and  the  true  owner  a  case  of  conflicting  titles 
is  presented  until  the  Statute  has  run;  or  that  until  then  there  can  be,  as 
between  them,  any  substantial  contest  as  to  the  title. 

But  as  to  the  other,  or  second  kind  of  adverse  possession,  the  case  is  other- 
wise. There  the  possession  is  accompanied  by  at  least  a  colorable  title,  and 
an  actual  and  substantial  contest  as  to  the  title  must  arise  whenever  the 
party  out  of  possession  undertakes  to  assert  his  rights  in  any  kind  of  action, 
for  they  occupy  the  position  of  conflicting  claimants  as  to  the  true  title, 
and  not  as  to  the  possession  only.  Where  the  defendant  is  in  possession  as 
a  naked  trespasser,  and  his  right  rests  only  upon  a  bold  assertion  which 
merely  suffices  to  put  the  Statute  of  Tiiniitations  in  motion,  he  is  not  in  a 
position  to  contest  the  title  of  the  plaintiff  in  such  a  simisc  as  to  defeat  a 
personal  action;  for  notwithstanding  ho  may  have  alleged  title  in  himself, 
it  turns  out  to  be  false,  and  at  the  outcome  it  is  made  clear  that  title,  al- 
though apparently  a  fact  in  issue,  is  so  in  no  just  sense,  but  only  in  Hceming, 
and  is  in  fact  only  exhibited  by  the  plaintiff  collaterally  for  the  purpose 
of  proving  his  right  to  the  property  in  suit.  Such  is  the  rule  announced 
in  Halleek  v.  Mixer,  as  we  understand  that  case,  and  if,  as  counsel  for  the 
appellants  contend,  that  case  crrvites  an  exception  where  none  previously 
existed,  wc  think  it  was  not  created  too  soon." 

627 


•419  THE   LAW   OF   FIXTURES.  [CHAP.   XIU. 

[*410J  has  been  carried  so  far,  that  *where  the  plaintiff  had 
recovered  in  ejectment  hmd  with  a  mill  situated  thereon,  and, 
after  judsrment  and  before  issuinp'  a  writ  of  habere  facias  pos- 
sessionem, the  defendant  while  yet  in  actual  possession  severed 
and  removed  from  \W  mill  the  bolting-cloth,  meal-chest,  mill- 
spindle,  etc.,  for  the  recovery  of  which  the  plaintiff  broujii^ht 
replevin,  it  was  held  that  such  recovery  in  ejectment  was  not 
equivalent  to  actual  possession,  and  that  replevin  did  not  lie.^ 
In  the  application,  however,  of  the  above  rule  a  distinction  is 
[*-i20]  to  be  made  between  actions  for  *taking  away  the  sub- 
stance of  the  estate  itself,  as  fixtures,  timber,  etc.,  and  those 
relating  to  annual  crops,  which  contain  both  the  value  of  the 
use  of  the  land  and  the  labor  of  the  farmer,  and  such  crops 
grown  and  actually  harvested  on  the  land  by  the  defendant 
while  in  possession,  it  is  held,  may  not  be  recovered  in  an 
action  of  replevin,  the  remedy  of  the  owner  of  the  land  in 
such  a  case  being  by  an  action  for  the  mesne  profits  after  again 
recovering  the  possession  of  the  land.-  And  the  rule  is  the 
same  though  the  crops  be  sown  by  the  owner  of  the  land  and 
harvested  by  the  disseisor.  ^ 

With  respect  to  the  damages  recoverable  in  this  form  of 
action,  it  is  to  be  observed  that,  although  where  one  sues  for 
damage  to  the  freehold  caused  by  the  wrongful  removal  of  a 
fixture,  e.  g.,  a  fence,  he  may  recover  the  value  thereof  as  it 
stood,  if  a  part  of  the  realty,  yet  where  he  sues  in  replevin  for 

1  Powell  V.  Smith,  2  Watts,  126  (1833).  In  Harlan  v.  Harlan,  already 
cited,  in  referring  to  this  case,  Rogers,  J.,  said:  "It  is  true  there  was  a 
recovery  in  ejectment,  but  no  habere  facias  had  been  issued,  and,  conse- 
quently, the  possession  of  the  defendant  continued,  as  before,  to  be  ad- 
verse. The  remedy,  therefore,  was  not  replevin,  but  an  action  for  mesne 
profits,  or  by  writ  of  estrepement. ' '  See,  also.  Page  v.  Fowler,  39  Cal., 
412,  416    (1870). 

2  See  Stockwell  v.  Phelps,  34  N.  Y.,  363  (1866)  ;  Page  v.  Fowler,  39  Cal., 
412  (1870);  Brothers  v.  Hurdle,  10  Ired.  Law,  490  (1849);  Branch  v. 
Morrison,  5  Jones's  Law,  16  (1857);  s.  C,  6  Id.,  16.  [Cooper  v.  Watson, 
73  Ala.,  252,  255  (1882);  Martin  v.  Thompson,  62  Cal.,  618,  619  (1882); 
Edwards   v.   Eveler,   84   Mo.   App.,   405,   410    (1900).] 

See,  also,  Page  v.  1  wler,  28  Cal.,  605  (1865);  s.  c,  37  Id.,  100;  Ray- 
mond V.  Andrews,  6  Cush.,  265  (1850).  See,  however,  Nichols  v.  Dewey,  4 
Allen,  386   (1862).     [Rowell  v.  Klein,  44  Ind.,  290,  296   (1873).] 

3DeMott  V.  Hagerman,  8  Cow.,  220  (1828).  [See  Wakefield  v.  Dyer, 
76  Pac,  151   (Okla.,  1904).] 

628 


CHAP.   XIII.]  TRESPASS.  ^421 

the  materials  as  personal  property,  which  are  not  taken  on 
the  writ,  he  can  recover  only  their  value  as  such.-*  So,  in  an 
action  by  the  purchaser  at  a  mortgage  sale  for  wrongfully  de- 
taining machinery  and  other  fixtures  severed  by  a  mortgagor 
(there  being  no  claim  for  a  wrongful  taking),  the  admission  of 
evidence  of  the  expense  of  replacing  the  property  in  the  mill 
from  which  it  was  severed,  is  error.  The  severance  of  the  prop- 
erty in  such  a  case  is  no  part  of  the  cause  of  action,  but  would 
have  been  the  subject  of  an  action  of  trespass,  the  action  in 
this  case  being  for  the  wrongful  detention  of  the  property  after 
it  became  personalty.^ 

IV.    Trespass. 

Since  fixtures  while  in  a  state  of  annexation  are  parcel  of 
*the  realty  to  which  they  are  annexed,  the  action  of  [*421] 
trespass  in  its  application  to  injuries  thereto  is  governed  by 
the  general  rules  limiting  its  application  as  a  means  of  redressing 
injuries  to  real  property. 

Trespass  quare  clausum  lies  against  a  sheriff  for  seizing  under 
a  fi.  fa.  the  fixtures  of  the  plaintiff,  who  is  a  freeholder.^  So, 
trespa&s  quare  clausum  lies  in  favor  of  one  tenant  against  his 
co-tenant  for  the  unauthorized  disseverance,  removal  and 
destruction  by  such  co-tenant  of  fixtures  constituting  a  part  of 
the  common  property.'^  And  the  unauthorized  disseverance  and 
removal  by  one  co-tenant  of  machinery  constituting  fixtures  in 
a  sash  and  blind-factory,  and  its  incorporation  into  another  mill 
the  sole  property  of  such  co-tenant,  has  been  held  to  be  such  a 
practical  destruction  of  the  common  property  as  to  authorize  an 
action  of  trespass  by  the  co-tenant  who  did  not  consent  thereto;  ^ 
though  a  simj^le  severance  and  removal  would  not,  it  seems,  war- 

4Pennybacker  v.  McDougal,  48  Cal.,  160   (1874). 

B  Gardner  v.  Finley,  19  Barb.,  317   (1855). 

oWinn  v.  Ingilby,  5  B.  &  Aid.,  625  (1822);  Goddard  v.  Bolster,  6  Mc, 
427    (1830). 

-  Maddox  v.  Goddard,  15  Me.,  218  (1839)  ;  Symonds  v.  Harris,  51  Mc., 
14   (1862). 

See  1  Chit.  Plead.  (16  Am.  ed.),  89,  175,  192,  200.  Murley  v.  McDermott, 
3  N.  &  P.,  366   (18.38). 

«  Symonds  v.  Harris  (supra).  Sec,  also,  Sparks  v.  Leavy,  19  Abh.  Pr., 
364   (1863)  ;  s.  C,  1  Robt.,  530,  an  action  by  one  tenant  in  common  in  pos- 

629 


*^21  THE  LAW   OF   FIXTURES.  [CIIAP.   XIII. 

rant  the  action.^  So,  in  those  States  where  a  mortgage  is  held  to 
be  a  conveyance  of  the  h\nd,  and  the  possession  of  the  mort- 
gagor is  considered  as  the  possession  of  the  mortgagee,  the  mort- 
gagee or  his  assignee  may  maintain  trespass  quarc  clausum 
against  any  one  who  under  autliority  fi-om  the  mortgagor  re- 
maining in  possession  enters  and  removes  fixtures  from  the 
premises,  whetlier  annexed  before  or  after  the  execution  of  the 
mortgage.^  "^ 

session  under  a  contract  with  his  co-tenants  to  convey  to  him  against  a  third 
person  for  injury  to  fixtures  in  which  the  whole  damages  were  held  recov- 
erable by  him. 

9  Gibson  v.  Vaughn,  2  Bail.,  389  (1831).  See,  also,  Murley  v.  McDer- 
mott   (supra). 

10  Cole  V.  Stewart,  11  Cush.,  181  (1853);  Smith  v.  Goodwin,  2  Me.,  173 
(1822).  See,  also,  Harris  v.  Haynes,  34  Vt,  220  (1861).  [Linscott  v. 
Weeks,  72  Me.,  506,  509  (1881);  Atkinson  v.  Hewitt,  63  Wis.,  396  (1885); 
see  Fisk  v.  People's  Bank,  14  Colo.  App.,   21,   26    (1899).] 

[In  the  absence  of  an  agreement,  express  or  implied,  denying  the  mort- 
gagee the  right  of  immediate  possession,  the  mortgagor  can  not  maintain 
trespass  against  the  mortgagee  for  removing  fixtures.  Chellis  v.  Stearns, 
22  N.  H.,  312    (1851).] 

But  a  mortgagee  out  of  possession  and  without  the  right  of  possession 
can  not  maintain  trespass  qvare  clausum  against  a  stranger  for  breaking 
and  entering  the  mortgaged  premises.  Gooding  v.  Shea,  103  Mass.,  360 
(1869). 

[Where  the  mortgagee  is  given  an  order  by  the  mortgagor  to  cut  the  hay 
upon  the  mortgaged  premises,  and  apply  the  proceeds  upon  the  indebted- 
ness, he  has  an  interest  in  the  soil  and  sufficient  possession  to  maintain  tres- 
pass qu.  cl.  against  a  stranger  who  enters,  cuts  and  carries  away  the 
hay  after  being  notified  not  to  do  so.  Burley  v.  Pike,  62  N.  H.,  495 
(1883).] 

[A  mortgagee,  whether  in  possession  or  not,  may  maintain  an  action  on 
the  ground  that  his  security  has  been  diminished,  as  long  as  anything  is 
due.  The  mortgagor  in  possession  may  also  recover  for  the  same  injury, 
but  the  defendant  is  not  compelled  to  make  two  satisfactions;  and,  as 
against  the  mortgagee,  he  can  show,  in  mitigation  of  damages  at  least,  that, 
since  the  injury,  there  has  been  a  change  of  relation  to  the  property 
whereby  the  mortgagee  can  be  indemnified  by  a  less  sum.  King  v.  Bangs, 
120  Mass.,  514   (1876).] 

[A  mortgagee,  with  the  right  of  possession,  can  maintain  the  action  of 
trespass  quare  clausum,  the  legal  title  being  in  him,  if  his  security  is 
affected.     Leavitt  v.   Eastman,   77   Me.,   117,   119    (1885).] 

[Trespass  q.  c.  for  removing  manure  lies  against  the  mortgagor  by  the 
mortgagee  entitled  to  immediate  possession,  although  he  is  for  a  time  post- 
poned in  getting  possession  by  legal  process;  and  it  lies  against  one  buying 

G30 


CHAP.    XIII.]  TRESPASS.  *422 

*0n  the  other  hand,  it  is  well  settled  that  a  lessor  can-  [*-i22] 
not  maintain  trespass  quare  clausum  against  a  stranger  for 
severing  and  removing  fixtures,  trees,  crops,  etc.,  while  there  is 
a  tenant  in  possession  of  the  premises.^  Neither  can  he  main- 
tain this  action  against  his  tenant  for  wrongfully  severing  and 
removing  fixtures  during  the  term;  nor  against  the  sub-tenant 
at  will  of  his  tenant.^ 

So,  under  an  agreement  for  the  sale  of  land,  the  payment 
of  the  purchase  money  and  the  execution  of  the  deed  being 

the  manure  from  the  mortgagor  and  taking  it  away.  Vehue  v.  Mosher,  76 
Me.,  469,  470    (1884).] 

[A  mortgagee,  alleging  that  the  removal  of  a  building  pending  fore- 
closure proceedings,  lessened  his  security,  can  not  recover  by  showing  a 
deficiency  under  the  foreclosure  and  sale,  if  the  foreclosure  was  void. 
Taylor  v.  McConnell,  53  Mich.,  587   (1884).] 

A  mortgagor  can  not  maintain  trespass  for  the  removal  of  buildings 
(theretofore  erected  by  mortgagee  in  possession)  intermediate  the  decree 
on  a  bill  to  redeem  and  the  issuing  of  a  writ  of  possession,  the  mortgagor 
not  being  in  possession.     Taylor  v.  Townsend,  8  Mass.,  411  (1812). 

A  tenant  for  a  term  of  years  demised  the  premises  to  plaintiff  by  way  of 
mortgage  by  deed  dated  March  24,  1838,  expressed  to  hold  thenceforth 
during  the  remainder  of  the  term  less  one  day,  and,  thereby  also  assigned 
to  plaintiff  the  fixtures,  etc.,  therein  to  hold  to  the  plaintiff  for  his  own 
absolute  use  and  benefit,  subject  to  the  proviso  thereinafter  contained  for 
a  reconveyance  on  repayment  of  the  mortgage  money  on  the  24th  of  June 
then  next,  and  also,  that  on  non-payment  on  that  day  it  should  be  lawful 
for  the  mortgagee  to  enter  upon  and  receive  and  take  the  rents  and  profits 
of  the  said  leasehold  and  other  premises,  and  if  he  should  think  proper  so 
to  do  of  his  solo  authority  to  sell  or  underlet  the  premises,  and  to  sell 
the  fixtures  and  chattels.  There  was  no  covenant  that  the  mortgagor 
should  remain  in  possession  till  June  24th,  but  the  court  held  that  looking 
at  the  whole  dcdl  the  jilaintiff's  right  to  take  possession  did  not  attach  till 
that  day,  and  that,  therefore,  tiie  mortgagee  could  not  maintain  trespass 
for  an  entry  or  for  an  asportavit  of  the  fixtures,  etc.,  made  before  that 
day  by  a  third  party.  Wheeler  v.  Montefiore,  2  Q.  B.,  133  (1842);  s.  c, 
6  Jur.,  290;    1   Cale  &  Dav..  493. 

1  C'ami)boll  v.  Arnold,  1  Joim.,  '>]^  (ISOO)  ;  Gibbons  v.  Dillingham,  10 
Ark.,  9  (1849).  [Uttendorffcr  v.  Saegers,  50  Cal.,  496,  498  (1875);  Rey- 
nolds v.  Williams,   1  Tex.  Repts.,  311,  312.] 

[This  rule  has  been  changed  by  statute  in  New  York.  Taylor  v.  Wright, 
51   App.   Div.,   97,   99    (1900).] 

2  Schermerhorn  v.  Buell,  4  Den.,  422  (1847)  ;  Tobey  v.  Webster.  3  John., 
468  (1808).  Per  Yates,  however,  in  this  case:  "An  action  of  trespass 
may  bo  maintained  by  a  landlord  against  a  tenant  at  will,  for  waste,  bo- 
cause   the   injury   determines   the   estate,   and   the   possession   considered  as 

631 


♦•123  THE  T.AW   OF   FIXTURES.  [CH^VP.   XIII. 

concurrent  acts  to  be  clone  in  the  future,  although  the  vendee 
acquires  an  equitable  interest  and  the  right  to  specific  per- 
[*423]  *formauce  on  payment  made,  yet,  not  having  the  legal 
title  nor  the  possession,  he  cannot  maintain  trespass  for  an  inter- 
mediate removal  of  fixtures  by  the  vendor. ^  So,  an  heir,  or  devisee 
cannot,  it  is  said,  bring  trespass  quarc  clausum  to  try  the  right  to 
fixtures  as  between  himself  and  the  executor,  till  after  entry 
made ;  ■*  though  in  the  United  States  the  doctrine  does  not  seem 
to  have  been  universally  accepted,  the  owner  in  some  States  be- 
ing allowed  to  maintain  trespass  without  actual  entry,  on  the 
principle  that  possession  follows  the  ownership,  unless  there  be 
an  adverse  possession.^ 

Whatever  may  be  the  rule  as  to  constructive  possession  in  the 
ease  of  real  estate,  the  rule  is  well  settled  that  where  fixtures, 
timber,  etc.,  have  been  severed  from  the  freehold  and  thereby 
reduced  to  the  condition  of  chattels,  the  person  in  whom  is 
vested  the  right  of  property  from  the  time  of  severance,  may 
maintain  trespass  de  hojiis  asportatis  for  their  removal ;  because 
the  general  property  of  personal  chattels  draws  to  itself  the 
legal  possession.^     Thus,  it  lies  by  the  grantee  of  real  estate  in 

thereby  actually  in  the  landlord."  See,  also,  8  Edw.  IV.,  8;  12  Id.,  8; 
Litt.,  §71;  Saville,  84;  Dy.  121b;  Com.  Dig.,  Tresp.,  B  2;  Bull.  N.  P., 
84;  1  Chit.  Plead.,  200,  and  cases  cited. 

3  Tabor  v.  Kobinson,  36  Barb.,  483   (1862). 

4  Anonymous,  2  Mod.,  7  (1686);  Plowd.,  142;  1  Chitty  Plead.,  197,  198. 
See,  also,  21  H.  VII,  26   (1506);   Ferard  Fixt.,  290. 

6  See  Van  Brunt  v.  Schenck,  11  John.,  385  (1814),  per  Spencer,  J.; 
Cohoon  V.  Simmons,  7  Ired.,  189  (1847);  McGraw  v.  Bookman,  3  Hill 
(S.  C),  265  (1837).  See,  also,  1  Chitty  Plead.  (16  Am.  ed.),  197,  and  the 
cases  cited. 

6  See  Ferard  Fixt.,  290;  Wadleigh  v.  Janvrin,  41  N.  H.,  503  (1860). 
[Westgate  v.  Wixon,  128  Mass.,  304,  307  (1880)  ;  Gasco  v.  Marshall,  7  Up. 
Can.  Q.  B.,  193,  196;  Meyers  v.  Marsh,  2  Up.  Can.,  Q.  B.,  148.] 

[A  purchaser  of  a  growing  crop  can  maintain  trespass  de  bonis  aspor- 
tatis but  not  quare  clausum  fregit  against  the  seller,  the  landowner  in 
possession  of  the  land,  for  injury  thereto;  and  he  is  not  estopped  because 
the  price  is  paid  after  the  trespass  was  committed,  where  the  sale  was 
on  credit.     Meinke  v.  Nelson,  56  111.  App.,  269,  271    (1894).] 

[One  not  in  possession  of  land  who  has  bought  grass  growing  thereon 
can  maintain  trespass  against  one  who  cuts  and  carries  it  away.  Avitt  v. 
Farrell,  68   Mo.   App.,  665,   668    (1896).] 

[One  having  title  to  lands  can  not  maintain  trespass  for  trees  cut  and 
removed  therefrom  while  another,  in  possession,  is  holding  adversely.    The 

632 


CHAP.  Xni.]  TRESPASS.  *424 

possession  for  the  wrongful  removal  of  fixtures  by  the  grantor.'' 
So,  fixtures  belonging  to  the  landlord  and  demised  by  him  with 
the  land  to  the  tenant,  or  which  for  any  reason  the  tenant  has 
no  right  to  sever  and  remove,  timber,  virgin  soil,  etc.,  wrongfully 
severed  and  removed  by  a  tenant  during  his  term,  may  be  re- 
covered by  the  landlord  in  trespass  de  honis.^  In  like  manner 
the  owner  of  land  in  possession  of  a  tenant  may  maintain  tres- 
pass de  bonis  against  a  stranger  for  taking  and  carrying  away 
fixtures  belonging  to  the  landlord,  timber,  etc.,  wrongfully  sev- 
ered by  him  from  the  *land.^  A  question  has,  however,  [*424] 
been  made  whether  an  action  of  trespass  de  bonis  asportatis 
for  the  removal  of  fixtures  after  their  severance  could  be  main- 
tained in  a  case  where  the  severance  and  removal  are  one  con- 
tinued and  entire  act;  ^*^  and  the  case  of  Udal  v.  Udal  ^^  is  cited 

title  can  not  be  litigated  in  a  personal  or  transitory  action;  otherwise  a 
bona  fide  occupant  might  be  harassed  by  a  multiplicity  of  suits,  all  of 
which  should  more  properly  be  embraced  in  one  action  for  mesne  profits 
after  or  during  recovery  in  ejectment.  Beatty  v.  Brown,  76  Ala.,  267,  269 
(1884).] 

[Trespass  can  be  maintained  by  one  not  in  actual  possession  of  the  land 
if  he  has  the  legal  title,  and  the  trespasser  is  not  in  possession,  and  does 
not  claim  title.    Jenkins  v.  Lykes,  19  Fla.,  148,  160  (1882).] 

[And  it  is  held  in  Alliance  Trust  Co.  v.  Nettleton  Co.,  74  Miss.,  584, 
592  (1896),  that  trover  or  trespass  de  bonis  asportatis  can  be  maintained 
by  the  disseizee,  the  true  owner,  after  his  re-eatry,  for  the  value  of  trees 
cut  by  the  first  or  second  disseizor  or  their  grantees  intermediate  the 
disseizin  and  such  re-entry.] 

[An  administrator  can  recover  for  injuries  to  real  estate  caused  by 
cutting  and  carrying  away  standing  timber,  committed  after  the  death  of 
the  intestate  and  before  he  takes  possession  of  the  real  estate.  Noon  v. 
Finnegan,  32  Minn.,  81    (1884).] 

7  Wadlejgh    v.    .Tanvrin    (supra.) 

8  See  ychermerhorn  v.  Buell,  4  Den.,  422  (1847);  Higgon  v.  Mortimer,  6 
C.  &  P.,  616  (1834);  Udal  v.  Udal,  Aleyn,  82  (1648);  Lif ord 's  Case,  11 
Co.,  48  (1614);  Bowles's  Case,  11  Co.,  81  b  (1615). 

oBuIkley  v.  Dolbeare,  7  Conn.,  232  (1828);  Ward  v.  Andrews,  2  Chitty, 
636  (1772).  [Babley  v.  Vyse,  48  Iowa,  481,  483  (1878);  liaiicy  v.  A. 
Siegel  Co.,  54  Mo.  App.,  50,  54  (1893)  ;  Parker  v.  Shackelford,  61  Mo., 
68,  72  (1875);  Smith  v.  Felt,  50  Barb.,  612,  615  (N.  Y.,  1868).  See 
Murphy  v.  Stafford    (18.52),  4  Jr.  .fur.,  231,  2.32.] 

[Landlord  can  bring  action  against  one  having  no  title  wlio  removes 
gravel  from  the  land.  Mayor  of  Cartervillo  v.  Lyon,  69  Ga.,  577,  580 
(1882).] 

lOFerard  Fixt.,  292. 

G33 


*^-5  TUE   L.VW    OF    FIXTURES,  [CHAP.    XIII. 

as  bearing  upon  the  question,  wIki'c  it  is  said  to  have  been  agreed 
by  the  court  "if  a  lessee  for  years  cuts  down  timber  trees  and 
lets  them  lie,  and  after  carries  them  away,  so  that  the  taking 
and  carrying  away  be  not  as  one  continued  act,  but  that  there 
be  some  time  for  the  distinct  property  of  a  divided  chattel  to 
settle  in  the  lessor,  that  an  action  of  trespass  vi  ct  armis  would' 
lie  in  such  case  against  the  lessee;  and  that  in  such  case  felony 
might  be  committed  of  them;  but  not  where  they  have  taken 
and  carried  away  at  the  same  time."  Although  the  distinction 
so  far  as  it  refei*s  to  the  crime  of  larceny  has,  in  favorem  vitae, 
been  recognized  in  subsequent  cases,i2  yet  even  there  a  slight 
interval  between  severance  and  removal  will  make  the  thing  re- 
moved a  chattel;  ^^  and  the  distinction  so  far  as  it  applies  to  the 
action  of  trespass  de  honis  asportatis,  or  trover,  seems  entirely 
too  subtle  and  refined  ever  to  be  generally  adopted,  and  does  not 
seem  in  fact  to  have  been  alluded  to  or  adopted  in  subsequent 
cases,  though  circumstances  raising  the  question  must  have  fre- 
quently happened.^'* 

[*-i25]  *A  tenant  or  his  vendee  may  also  recover  in  this  form 
of  action  against  a  w^rong-doer  for  the  asportation  of  fixtures, 

"Aleyn,  82  (1648).  See,  also.  Bull.  N.  P.,  84;  Vin.  Abr.,  Trees,  A,  G; 
2  Roll.  Abr.,  119;  Com.  Dig.  Biens,  H;  3  Bing.,  136;  Barnes  v.  Burt,  38 
Conn.,  541    (1871),  cited  post  in  this  sec. 

12  See  post,  chapter  on  Criminal  Law. 

13  See  Spooner  v.  Brewster,  3  Bing.,  136  (1825);  s.  c,  10  Moore,  494; 
2  C.  &  P.,  34,  per  Best,  C,  J. 

"See  Berry  v.  Heard,  Cro.  Car.,  242  (1622);  s.  c,  Palm.,  327;  Bend., 
141;  W.  Jo.,  255;  Skidnes  v.  Huson,  Noy,  125  (1607);  2  Roll.  Abr,,  119; 
Perard  Fixt.,  299;  post,  Trover, 

[Rails,  when  made  into  a  fence,  become  a  part  of  the  land;  and  where 
they  are  removed  and  carried  away  by  the  same  continuous  act,  it  is  not 
trespass  to  personal  property.     State  v.  Graves,  74  N.  C,  396  (1876).] 

Where  fixtures  are  severed  from  the  freehold  and  remain  on  the  prem- 
ises for  a  period,  but  are  subsequently  removed,  the  Statute  of  Limitations 
is  no  bar  to  an  action  for  the  removal  brought  within  six  years  thereafter, 
although  more  than  six  years  have  elapsed  since  the  severance.  Morgan  v, 
Varick,  8  Wend.,  587   (1832). 

[When  timber  is  cut  and  hauled  away,  the  trespass  may  be  considered 
as  a  continuing  trespass,  not  completed  until  the  timber  is  hauled  away; 
and,  under  these  circumstances,  the  statute  of  limitations  would  not  com- 
mence to  run  until  the  removal  of  the  timber  was  completed.  Sullivan  v. 
Davis,  29  Kan.,  28,  34    (1882).] 

634 


CHAP.  Xni.]  TRESPASS.  *425 

nursery  trees,  shrubs,  plants,  etc.,  removable  by  the  tenant  as 
against  his  landlord.!^  The  tenant  in  possession,  also,  it  is  said, 
has  during  the  term  a  sufficient  interest  in  the  fixtures  to  enable 
him  to  maintain  trespass  de  honis  asportatis  or  trover  against 
a  third  party  who  wrongfully  removes  them,  although  at  the 
end  of  the  term  he  may  be  bound  to  leave  them  for  the  use  of 
the  landlord;  1 '5  for  during  the  term  he  has  a  special  property 
therein.  So,  where  A.  granted  to  B.  and  his  heirs,  liberty, 
license,  power  and  authority  to  build  a  bridge  on  A.'s  land  for 
public  use,  and  B.  covenanted  to  build  the  bridge  and  maintain 
the  same  in  repair,  and  that  such  bridge  and  the  road  leading 
to  and  from  it  should  forever  remain  as  a  public  highway  free 
from  toll,  it  was  held  that  as  against  a  wrong-doer  the  property 
in  the  materials  of  the  bridge,  when  built  and  dedicated  to  the 
public,  still  continued  in  B.,  subject  to  the  public  easement, 
and  that  when  severed  and  taken  away  by  a  wrong-doer,  he 
might   maintain  trespass   de   bonis   for  such   materials.^"      So, 

15  See  Miller  v.  Baker,  1  Met.,  27  (1840) ;  s.  C,  3  Law  Eeporter,  148. 
In  this  case  the  tenant  had  sold  and  delivered  nursery  trees,  etc.,  while 
rooted  in  the  ground,  to  the  plaintiff,  and  after  such  sale  they  were  levied 
upon  on  an  execution  against  the  tenant  and  kept  by  the  officer  rooted  in 
the  greenhouse  and  garden,  no  one  being  permitted  to  remove  them;  and 
this  taking  them  into  possession  and  excluding  the  owner  from  the  lawful 
exercise  of  his  rights  over  them  was  treated  as  a  conversion  sufficient  to 
warrant  trespass  de  bonis,  the  trees,  etc.,  being  considered  mere  personal 
chattels.  See,  however,  Davis  v.  Banks,  3  Exch.,  435  (1849)  ;  Lee  v.  Ris- 
don,  7  Taunt.,  191  (1816),  and  other  cases  cited  post,  to  the  point  that 
fixtures  during  annexation  are  realty. 

16  See  Hitchman  v.  Walton,  4  M.  &  W.,  409,  416  (1838),  per  Parke,  B.; 
Boydell  v.  McMichael,  1  Cr.  M.  &  R.,  177,  179  (1834),  per  Parke,  B.; 
Bowles's  Case,  11  Co.,  82  (1615);  Bull.  N.  P.,  33;  Vin.  Abr.,  Trees,  G. 

See,  however,  Evans  v.  Evans,  2  Camp.,  491  (1810),  where  it  was  held  at 
nisi  prius  that  a  tenant  for  years  could  not  maintain  trespass  de  bonis 
asportatis  for  timber  cut  down  on  the  demised  premises.  Lawrence,  J.: 
"The  fdaintiff  had  no  property  or  interest  whatsoever  in  the  trees  after 
they  were  severed  from  the  freehold.  They  were  then  in  the  legal  posses- 
sion of  the  reversioner,  and  ho  alone  could  maintain  trespass  for  tho 
asportation. ' ' 

17  Harrison  v.  Parker,  6  East,  154  (1805).  Lonl  Ellenliorough,  C.  J.: 
"They  [the  materials )  wore  dedicated  by  him  to  the  public  for  given 
purposes,  but  a  scintilla  "f  property  still  remained  in  him;  and  when  those 
purposes  could  no  longer  be  answered  by  their  ceasing  to  bo  combined  in 
that  form  in  respect  of  which  the  dedication  was  made,  without  saying  that 

635 


•426  THE  L.VW   OF   FIXTURES.  [CHAP.   XIII. 

[♦426]  *where  fixtures,  timber,  trees,  etc.,  constituting  a  part  of 
the  premises  demised  to  the  tenant,  are  wrongfully  severed  by 
the  landlord  or  by  one  acting  under  his  authority,  it  seems  that 
the  landlord  and  the  party  so  acting  under  him  in  effecting  such 
wrongful  severance  cannot  take  advantage  of  their  own  wrong- 
ful act,  and  are  estopped  from  claiming  that  the  tenant's  interest 
in  the  thing  so  severed  is  thereby  terminated,  and  hence  that  the 
tenant  may  recover  therefor  in  trespass.^  ^ 

he  could  have  severed  them  himself,  they  returned  to  him  again  as  his 
absolute  property,  and  he  may  well  maintain  this  action  against  a  wrong- 
doer for  the  materials  now  subsisting  in  the  shape  of  several  chattels.  It 
is  something  analogous  to  the  case  where  the  founder  of  an  eleemosynary 
foundation  dedicates  his  lamd  to  its  support,  and  it  afterwards  ceases,  the 
land  reverts  to  him  or  his  heirs.  Here  there  was  a  qualified  right  of  prop- 
erty subsisting  in  the  plaintiff  after  the  dedication  of  the  bridge  to  the 
public,  which  upon  the  severance  of  the  materials  became  a  perfect  right  of 
property  in  him." 

See,  also,  8  Taunt.,  614. 

[A  land-owner  constructed  a  sidewalk  in  front  of  his  lot.  Forty-five 
years  later,  the  city,  in  constructing  a  drain,  removed  the  granite  curb- 
stones, substituting  others,  and  sold  those  which  had  been  removed.  The 
land-owner  brought  trespass  d.  b.  a.  against  the  person  who  assisted  in  car- 
rying them  away.  Held,  that  the  defendant  was  liable,  as,  in  the  absence 
of  proof,  the  land-owner  owned  to  the  middle  of  the  street;  that,  at  most, 
he  dedicated  the  use  only  of  such  sidewalk  to  the  public,  which  to  be 
complete,  must  be  proved  to  have  been  accepted;  and  that,  while  the  city 
might  have  used  the  material  for  repairs,  such  material  could  not  be  sold. 
Muzzey  v.  Davis,  54  Me.,  361    (1867).] 

[Trespass  q.  c.  does  not  lie  against  one  fastening  his  boat  to  a  bridge 
which  forms  the  public  highway  over  a  navigable  stream,  although  the 
bridge  rested  upon  the  soil  of  the  plaintiff.  Parsons  v.  Clark,  76  Me., 
476   (1884).] 

18  See  Pitt  V.  Shew,  4  B.  &  Aid.,  206  (1821);  Channon  v.  Patch,  5  B.  & 
C,  897  (1826).  Holroyd,  J.,  in  this  case  said:  "The  landlord  (under 
whom  the  plaintiff  claims  as  vendee)  cannot  by  wrongfully  cutting  down 
the  trees  acquire  a  right  to  them  so  as  to  entitle  him  to  maintain  trespass 
against  the  tenant  for  taking  them  away.  That  would  be  allowing  him  to 
take  advantage  of  his  own  wrong,  for  the  lessee,  during  the  term  being 
entitled  to  the  usufruct  of  the  trees,  might  have  maintained  an  action  on 
the  case  against  the  landlord  for  wrongfully  cutting  them  down."  See, 
also,  Twigg  V.  Potts,  1  Cr.  M.  &  R.,  89  (1834)  ;  Vin.  Abr.,  Trees,  A.  [See 
Meinke  v.  Nelson,  .^6  111.  App.,  269,  271  (1894);  Willis  v.  Branch,  94  N. 
C,  142,  150  (1886).] 

A.  hired  of  B.  certain  rooms  with  the  privilege  of  putting  a  brass  plate 
with  A.  's  name  thereon  upon  the  front  door  there  to  remain  so  long  as  he 

636 


CHAP.  Xin.]  TRESPASS.  *427 

*But  although  an  auctioneer  has  a  special  property  as  [*427] 
bailee  in  goods  and  chattels  put  into  his  possession  for  the  pur- 
pose of  sale,  whether  such  goods  be  in  his  own  rooms  or  in  the 
house  of  another  person,  yet  where  put  into  possession  of  a  house 
for  the  purpose  of  selling  in  lots,  machinery  and  fixtures,  to  be 
sold  as  fixtures  attached  to  the  freehold,  the  purchaser  being 
bound  to  detach  and  remove  them,  such  auctioneer  has  not  such 
a  possession  of  the  house  and  fixtures  as  to  entitle  him  to  bring 
trespass  de  bonis  for  their  wrongful  removal.  He  was  only  au- 
thorized at  the  time  of  his  employment  to  sell  the  right  of  de- 
taching and  removing  the  fixtures;  has  no  possession  of  them 
as  materials;  and  is  not  in  possession  of  the  freehold. ^^ 

With  reference  to  the  proper  manner  of  describing  the  prop- 
erty in  question  in  the  pleadings  in  actions  of  tort  for  injuries 
to  fixtures,  some  questions  have  arisen  which  will  be  referred  to 
at  this  place. 

The  value  of  fixtures  illegally  taken  has  been  held  to  be  re- 
coverable in  trespass  under  a  declaration  for  breaking  and  enter- 
ing plaintiif 's  dwelling-house  and  for  taking  divers  "goods  and 
chattels,  and  effects,"  Abbott,  C.  J.,  observing  that  fixtures 
might  be  taken  in  execution  under  a  fieri  facias  which  contains 
similar  words. ^"^ 

should  continue  to  occupy  the  apartments.  Subsequently  the  rent  being  in 
arrear  B.  removed  the  brass  plate  from  the  door  and  refused  A.  access  to 
his  apartments.  In  trespass  by  A.  charging  that  B.  broke  and  entered  A. 'a 
apartments  and  expelled  him  therefrom,  that  he  removed  the  plate  of  plain- 
tiff from  the  outer  door  and  seized  and  converted  his  goods,  B.,  among 
other  pleas,  pleaded  that  A.  was  not  possessed  of  the  brass  plate  modo  et 
forma,  on  which  issue  was  taken.  Held,  that  the  removal  of  the  plate 
having  been  complained  of  in  the  declaration  as  a  substantive  trespass  and 
issue  taken  on  the  possession  of  the  plate  as  a  chattel,  it  was  not  compe- 
tent for  defendant  to  change  his  ground.  If  defendant  had  meant  to  con- 
tend that  it  was  so  fixed  to  the  freehold  as  to  have  ceased  to  be  a  chattel, 
he  should  in  his  plea  have  shown  how  it  was  in  fact  fastened,  and  not  hav- 
ing done  so,  it  was  too  late  to  urge  the  point  on  the  rule  nisi  to  enter  ver- 
dict for  defendant  or  a  nonsuit  on  the  ground  that  tlio  removal  of  the 
plate  was  not  a  substantive  trespass.  Lane  v.  Dixon,  .3  C.  B.,  77(5  (1H47)  ; 
8.  C,  11  Jur.,  80;  ir,  L.  .!.,  C  P.,  iLiO.  See,  also,  Welch  v.  Nash,  8  East, 
394   (1807). 

"Davis  V.  Danks,  ."i  Exch.,  43.')  (1849);  s.  0.,  18  L.  J.,  Exch.,  21.3. 

See,  however,  Miller  v.  Baker  (ante). 

20  Pitt  V.  Shew,  4  B.  &  Aid.,  206  (1821).     The  articles  in  question  in  this 

n:}7 


•428  THE  LAW  OF  FIXTURES.  [ClIAP.   XIU. 

On  the  other  liaiul  under  a  declaration  by  an  administratrix 
complainin«j:  of  injuries  to  the  "personal  chattels"  of  the  intes- 
tate, no  recovery  can  be  liad  for  injuries  to  the  trade  fixtures  of  a 
[*428J  tenant  firmly  affixed  to  a  buildinji:  by  bolts  and  *screws, 
they  not  being  personal  chattels.^i  In  order  to  avoid  all  ques- 
tion in  similar  cases  where  the  injury  complained  of  is  done  to 
property  while  in  a  state  of  annexation  to  the  freehold,  the  prop- 
erty should  be  described  in  terms  applicable  to  it  only  in  a  fixed 
state.22 

case  probably  were  not  removed  till  several  days  after  their  severance.  See 
S.  C.  on  motion  for  a  new  trial,  4  B.  &  Aid.,  208;  Parke,  B.,  in  Hallen 
V.  Eunder,  1  Cr.  M.  &  R.,  266,  276  (1834)  ;  Ferard  Fixt.,  293,  note.  See, 
also,  Twigg  v.  Potts,  3  Tyrwh.,  969  (1834);  s.  c,  1  Cr.  M.  &  R.,  89;  3 
L.  J.   (N.  S.),  Exch.,  336. 

2iBarnett  v.  Lucas,  5  Ir.  Com.  Law,  140  (1870).  [Reversed  in  (1872) 
Ir.  R.,  6  C.  L.,  247.]  See,  also,  Pirn  v.  Grazebrook,  4  Scott  N.  R.,  565 
(1842). 

22  See  Ferard  Fixt.,  293,  and  the  cases  cited  in  the  following  pages.  See, 
also,  Richardson  v.  Ardley,  38  L.  J.  Chanc,  508  (1869);  Dyer,  108  b, 
pi.   31. 

Where  plaintiff  declared  in  trespass  to  personal  property  for  taking  and 
carrying  away  his  '  *  small  fish-house  or  camp, ' '  and  in  another  count  for 
destroying  his  "wooden  camp  or  small  house,"  situated  on  a  small  island 
in  another  State,  it  not  appearing  that  the  building  stood  on  land  owned  by 
any  private  individual,  and  the  plaintiff  making  no  claim  to  the  land;  and 
it  appeared  that  the  house  or  camp  was  a  building  about  nineteen  feet 
square,  one  story  high,  with  no  cellar,  used  by  plaintiff  and  his  men  to  live 
in  every  spring  while  carrying  on  the  salmon  fishery,  it  was  held  that  there 
was  no  legal  presumption  from  the  declaration  and  evidence  that  the  build- 
ing was  real  estate,  and  that  if  defendant  would  oust  the  courts  of  Massa- 
chusetts of  jurisdiction  on  the  ground  that  the  action  was  a  local  one,  he 
should  prove  it  so,  and  not  having  produced  any  evidence  at  all  the 
plaintiff  was  entitled  to  recover.  Rogers  v.  Woodbury,  15  Pick.,  156 
(1832), 

[An  action  for  injury  to  a  wooden  tent  erected  upon  the  land  of  another 
under  a  parol  license,  is  transitory,  and  can  be  brought  in  another  county 
than  that  in  which  the  building  is  located.  Ford  v.  Burleigh,  62  N.  H., 
388,  391   (1S82).     See  Laird  v.  Railroad,  62  N.  H.,  254,  261   (1882).] 

[Where  the  lower  court,  in  an  action  of  trespass  qua.  cla.,  has  rendered 
judgment  for  the  plaintiff,  every  reasonable  intendment  is  to  be  made  in 
support  of  it ;  and  where  the  facts  found  are  consistent  with  the  theory 
that  a  meetinghouse  horseshed,  the  subject  of  the  suit,  was  so  attached  as 
to  the  realty  as  to  become  a  part  of  it,  the  judgment  will  not  be  reversed, 
Kelly  V.  Seward,  51  Vt.,  436,  440  (1879).] 

638 


CHAP.    XIII.]  TRESPASS.  *429 

With  respect  to  the  measure  of  damages  in  actions  of  tres- 
pass quare  clausum  f regit  for  injuries  to  real  property,  it  may 
be  laid  down  that,  although  the  asportation  of  fixtures,  trees, 
etc.,  may  be  a  ground  for  maintaining  the  action  of  trespass  de 
bonis  asportatis,  or  trover,  yet  it  may  be  laid  also  as  an  aggrava- 
tion in  trespass.23  And,  though  in  trover  the  plaintiff  can  only 
recover  the  value  of  the  fixtures  wrongfully  severed  *as  [*429] 
chattels,2^  though  it  be  less  than  their  value  was  as  fixtures,  yet 
in  trespass  their  actual  value  as  fixtures  may  be  recovered.^^ 

[Where  a  steam-barge  ran  into  a  boom  of  logs,  which  consisted  of  con- 
nected timbers  chained  at  one  end  to  a  clump  of  piles,  and  at  the  other  to 
a  dock,  it  was  held  to  be  a  trespass  upon  real  property,  and  within  the 
jurisdiction  of  a  state  court.  John  Spry  Lumber  Co.  v.  Steam-barge 
C.  H.  Green,  76  Mich.,  320,  331    (1889).] 

[A  fence  being  part  of  the  realty,  an  action  of  trespass  q.  c.  for  taking 
it  away  raises  a  question  as  to  the  title  to  real  estate  which  is  beyond  the 
jurisdiction  of  a  justice  of  the  peace.  Murray  v.  Van  Derlyn,  24  Wis.,  67 
(1869).] 

In  Coddington  v.  Beebe,  29  N.  J.,  550  (1862)  ;  (s.  c,  31  Id.,  477),  upon 
demurrer  to  a  declaration  to  enforce  a  mechanics'  lien  against  a  "certain 
building  and  fixture  for  manufacturing  purposes,  and  the  fixed  machinery 
and  gearing  attached  to  and  connected  therewith  and  making  a  part  thereof, 
known  by  the  name  of  a  floating-dock"  (describing  it),  and  also  upon  the 
estate  of  the  owner  of  said  building  in  the  land  whereon  the  said  building 
stood  and  to  which  it  was  attached.  Held,  that  it  was  impossible  to  deter- 
mine from  the  declaration  whether  such  floating-dock  was  or  was  not  a 
fixture,  and  the  judgment  below  overruling  the  demurrer  and  giN^ng  judg- 
ment for  plaintifif  was  reversed  and  the  record  remitted.  [See,  ante,  p. 
•289.] 

23  Anderson  v.  Buckton,  1  Str.,  192  (1719)  ;  Barnes  v.  Burt,  38  Conn.,  541 
(1871),  where  in  trespass  by  husband  and  wife  for  an  entry  on  the  land 
of  the  wife,  and  the  severance  and  removal  of  a  pump  so  aflixed  to  the  land 
as  to  become  a  fixture,  the  plaintiffs  were  held  entitled  to  recover  for  the 
removal  of  the  pump,  if  the  entry,  severance  and  removal  were  one  con- 
tinuous act.  See,  also,  Weeton  v.  Woodcock,  5  M.  &  W..  587  (1839) ;  s.  c, 
Id.,  143. 

24  Clarke  v.  Holford,  2  C.  &  K.,  540  (1848),  and  cases  cited  in  the  next 
section, 

20  Moore  v.  Drinkwater,  1  Fost.  &  Fin.,  134  (1858).  [Rhoda  v.  Alameda 
County,  58  Cal.,  357  (1881);  Kent  County  Soc  v.  I<lo,  128  Mich,,  423,  426 
(1901);  Beck  v.  Zimmerman,  75  N.  C,  60   (1876). J 

[The  measure  of  damages  for  removing  an  oil-tank  used  for  the  purpose 
of  lighting  a  theatrical  hall,  would  be  the  cost  of  returning  the  tank,  of 
repairing  injuries  and  the  loss  resulting  from  disappointment  of  existing 

639 


•429  THE   LiVW  OF  FIXTURES.  [CHAP.   XIII, 

Thus,  where  the  assipioes  of  a  bankrupt  sold  at  auction  fixtures 
beloni2:ing:  to  the  i)hnntiir  and  situated  on  demised  premises,  for 
£36  16s.,  which  was  their  fair  value  sold  in  that  manner,  but 
their  value  if  sold  at  a  valuation  as  between  incoming  and  out- 
going tenants  would  have  been  £80,  in  trespass  for  taking  and 
carrying  away  the  goods,  chattels,  fixtures  and  effects  of  plain- 
tilt',  it  was  held  by  the  Court  of  Queen's  Bench  that  the  assignee 
was  not  entitled  to  take  advantage  of  his  own  proceeding  in 
separating  the  fixtures  from  the  house,  according  to  ordinary 
experience  it  being  most  probable  they  would  be  sold  with  it, 
and  that  plaintiff  was  entitled  to  recover  damages  according  to 
the  latter  estimate.^*^  So,  in  trespass  for  removing  the  fruit 
trees  from  an  orchard,  the  measure  of  damages  is  the  orchard 
as  it  was  situated  upon  the  ground,  i.  e.,  what  it  was  worth  to 
the  tract  of  land,  and  not  the  value  of  the  trees  which  were  re- 
moved.-'^ 

Where,  however,  in  trespass  quare  clausum  fregit,  the  plaintiff 
complains  not  only  of  injury  to  land,  but  that  his  dwelling- 
house  was  destroyed,  and  the  cause  is  tried  upon  plea  of  title, 
he  cannot  upon  error  brought  insist  that  the  house  was  per- 
sonalty for  the  destruction  of  which  trespass  would  lie.  The 
gist  of  the  action  in  such  case  is  the  injury  to  the  land,  the  allega- 
tion as  to  destruction  of  the  dwelling  being  merely  matter  of 
aggravation;  and  unless  the  evidence  sustains  the  charge  of  in- 
jury to  the  land  the  plaintiff'  is  not  entitled  to  recover.^s     But 

engagements  for  entertainments.  Willis  v.  Branch,  94  N.  C,  142,  149 
(1886).] 

[Where  a  building  is  destroyed,  the  extent  of  the  recovery  of  a  life  tenant 
is  not  the  value  of  the  fixture,  but  is  to  be  approximated  by  taking  into 
consideration  its  rental  value  less  taxes  and  repairs,  and  multiplying  by 
the  probable  duration  of  life.  Sagar  v.  Eckert,  3  111.  App.,  412,  417 
(1879).] 

26  Thompson  v.  Pettitt,  10  Q.  B.,  101  (1847)  ;  s.  C,  11  Jur.,  748;  16  L.  J., 
Q.  B.,  163. 

27  Mitchell  V.  Billingsley,  17  Ala.,  391  (1850).  See,  also,  Ivey  v.  Mc- 
Queen, Id.,  408  (1850)  ;  Whitbeck  v.  N.  Y.  Central  E.  R.  Co.,  36  Barb.,  644 
(1862).     [See  White  v.  Stoner,  18  Mo.  App.,  540  (1885).] 

28  Houghtaiing  v.  Houghtaling,  5  Barb.,  379  (1849).  [Burleigh  v.  Ford, 
.59  N.  H.,  536  (1880);  see,  also,  Missouri,  &e.,  R'y  Co.  v.  Lycan,  57  Kan., 
635,  640  (1897);  Johnson  v.  Willoughby,  3  Tenn.  Cas.  (Shannon),  338,  341 
(1875).] 

640 


CHAP.    Xm.]  TRESPASS.  *430 

if  the  thing  destroyed,  although  it  is  part  of  the  realty,  has  a 
value  which  can  be  accurately  measured  and  *ascertained  [*430] 
without  reference  to  the  value  of  the  soil  in  which  it  stands,  or 
out  of  which  it  grows,  the  recovery  must  be  for  the  value  of 
the  thing  thus  destroyed,  and  not  for  the  difference  in  the  value 
of  the  land  before  and  after  such  destruction.^^  And  in  trespass 
for  digging  and  cutting  the  plaintiff's  close  and  carrying  away 
the  soil,  the  proper  measure  of  damages  was  held  by  the  Court 
of  Exchequer  to  be  the  value  to  the  plaintiff  of  the  land  re- 
moved and  not  the  expense  of  restoring  the  land  to  its  original 
condition.^*^ 

With  reference  to  the  measure  of  damages  in  actions  of  tres- 
pass de  bonis  asportatis  in  cases  of  injuries  to  real  estate,  it  is 
to  be  observed  that  his  class  of  cases  falls  as  regards  the  question 
of  damages  properly  under  the  head  of  torts  to  personal  prop- 
erty, for  the  consideration  of  which  the  reader  is  referred  to  the 
professed  treatises  on  the  subject  of  damages.^i 

[When  the  action  is  for  breach  of  the  close,  damages  for  the  removal  of 
fixtures  are  incidental  to  the  action  and  separable  from  it.  King  v.  Bangs, 
120  Mass.,  514,  515   (1876).] 

[The  breaking  of  an  awning-post  belonging  to  another,  rightfully  at- 
tached to  the  sidewalk  and  the  owner's  house,  is  trespass.  Schergens  v. 
Wetzell,  12  Mo.  App.,  596.] 

[Removing  the  drivepipe,  casing  and  tubing  from  a  gas-well  is  an  injury 
to  real  estate,  whether  such  structures  are  personalty  or  realty.  Ohio  Oil 
Co.  V.  Griest,  30  Ind.  App.,  84  (1902).] 

29  Per  Johnson,  J.,  in  Whitbeck  v.  N.  Y.  Central  K.  E.  Co.  (supra). 
[Hunt  v.  Boston,  183  Mass.,  303,  307  (1903).] 

[If  the  value  of  the  timber  cut  covered  the  damage  done  to  the  land, 
that  should  be  the  basis  of  the  verdict;  but,  if  not,  the  amount  should  be 
fixed  at  the  damage  done  the  land  by  cutting  and  removal  of  timber.  Thomp- 
son V.  Moiles,  46  Mich.,  42,  44   (1881).] 

[The  measure  of  damages  for  the  destruction  of  an  immature  crop  is 
its  value  at  the  time  it  is  destroyed,  which  is  not  what  it  is  worth  for 
immediate  use,  but  is  ascertained  by  deducting  the  cost  of  harvesting  and 
threshing  from  tho  probable  amount  the  crop  would  have  yielded  at  the 
market  season.     Scanland  v.  Musgrovc,  91  111.  App.,  184,  186   (1900).] 

30  Jones  v.  Gooday,  8  M.  &  W.,  146  (1841).  [Donovan  v.  Consolidated 
Coal  Co.,  88  111.  App.,  589,  597  (1899)  ;  Karst  v.  St.  Paul,  S.  &  T.  F.  R.  R. 
Co.,  22  Minn.,  118,  123   (1875).] 

31  See  Sedg.  on  Dam.,  ch.  v.,  p.  "145;  ch.  xxii.,  p.  "528,  ct  seq. 

41  641 


431  THE   Lj\W   op  fixtures.  [chap.    XIII. 


V.     Trover. 

Fixtures,  trees,  etc.,  when  unlawfully  severed  from  the  soil, 
become,  at  the  option  of  the  owner  of  the  freehold  to  whom  they 
belonged  before  severance,  personal  property,  for  the  wrongful 
asportation  or  assumption  of  dominion  over  which  after  their 
severance  trover  lies  at  the  suit  of  such  owner.^^  ^^^j  i\^q  action 
lies  without  any  demand  or  refusal  against  a  bona  fide  purchaser 
[*431]  of  the  thing  severed  by  a  trespasser  *though  the  defend- 
ant was  ignorant  of  the  trespass  when  he  converted  the  thing 
severed  to  his  own  use.^^    So,  in  those  States  where  a  mortgage 

32  Phillips  V.  Bowers,  7  Gray,  21,  26  (1856) ;  Moody  v.  Whitney,  34  Me., 
563  (1852);  Strickland  v.  Parker,  54  Me.,  263  (1866);  Mooers  v.  Wait,  3 
Wend.,  104  (1829)  ;  Riley  v.  Boston  Water  Power  Co.,  11  Cush.,  11  (1853)  ; 
Higgon  V.  Mortimer,  6  C.  &  P.,  616  (1834)  ;  Berry  v.  Heard,  Cro.  Car.,  242 
(1622);  s.  c,  Palm.,  327;  Bend.,  141;  W.  Jo.,  255;  Farrant  v.  Thompson, 
2  D.  &  R.,  1  (1822)  ;  s.  c,  5  B.  &  Aid.,  826;  Weeton  v.  Woodcock,  7  M.  & 
W.,  14  (1840).  See,  also,  OUver  v.  Vernon,  6  Mod.,  170  (1704);  s.  c. 
Holt,  332.  [Nelson  v.  Burt,  15  Mass.,  204  (1818)  ;  Westgate  v.  Wixon,  128 
Mass.,  304,  307  (1880)  ;  Mueller  v.  Olson,  90  Minn.,  416,  417  (1903)  ;  Shep- 
ard  V.  Pettit,  30  Minn.,  119,  121  (1883)  ;  Bailey  v.  Sweeney,  64  N.  H.,  296, 
297  (1886);  Reynolds  v.  Dechman,  2  Nova  S.  L.  R.,  459  (1881);  Cleaver 
V.  Culloden,  15  Up.  Can.,  Q.  B.,  582,  584;  see,  also,  Connor  v.  Squiers,  50 
Vt.,  680,  683  (1878).] 

[Trover  may  be  brought  for  timber  severed  in  another  state.  Tyson  v. 
McGuineas,  25  Wis.,  656   (1870).] 

If  a  tenant  of  a  farm  takes  and  removes  from  the  premises  and  converts 
to  Ms  own  use  the  manure  made  thereon  in  the  ordinary  course  of  hus- 
bandry, the  landlord  may  recover  therefor  in  trover  or  trespass  de  bonis 
asportatis.  See  Plumer  v.  Plumer,  30  N.  H.,  558  (1855)  ;  Daniels  v.  Pond, 
21  Pick.,  367  (1838).     [See,  ante,  p.  *122.] 

So,  trover  lies  in  favor  of  the  grantee  against  the  grantor  of  land  for  the 
removal  and  conversion  by  grantor  of  the  manure  accumulated  in  the  barn- 
yard and  in  heaps  at  the  windows  of  the  stables  of  the  granted  premises. 
Stone  V.  Proctor,  2  D.  Chip.,  108   (1824). 

[Where  a  mortgagor  of  a  farm  is  left  in  possession,  upon  his  solicitation, 
after  the  mortgagee  obtains  a  writ  of  possession,  and  the  night  before 
leaving  under  his  agreement,  sells  the  manure  upon  the  farm  to  one  knowing 
that  the  mortgagee  claims  it,  the  mortgagee  can  maintain  trover  against  the 
purchaser.     Chase  v.  Wingate,  68  Me.,  204,  207   (1878).] 

33  Riley  V.  Boston  Water  Power  Co.,  11  Cush.,  11  (1853).  See,  also.  Far- 
rant  V.  Thompson,  2  D.  &  R.,  1  (1822)  ;  s.  c,  5  B.  &  Aid.,  826.  [Freeman 
V.  Underwood,  66  Me.,  229,  232  (1877).] 

Where,  however,  the  fixture  was  severed  and  shipped  by  the  mortgagor 

642 


CHAP.    Xni.]  TROVER.  *431 

is  considered  a  conveyance  of  the  land  to  the  mortgagee,  the 
rule  first  above  stated  applies,  and  the  mortgagee  may  bring 
trover  for  fixtures  unlawfully  severed  and  converted.^^ 

If  a  landlord  under  a  distress  for  rent  arrere  severs  the  ten- 
ant's fixtures  from  the  freehold  and  sells  them,  he  is  liable  in 
trover  therefor.^^    The  articles  may  be  described  in  the  declara- 

accompanied  by  a  bill  of  lading  to  an  agent  for  sale,  who  sold  it  and  in- 
dorsed the  bill  of  lading  to  a  bona  fide  purchaser  without  notice,  it  was  held 
that,  though  a  fixture,  the  bill  of  lading  in  regard  to  the  transfer  of  the 
property  like  a  bill  of  exchange  was  good  unless  affected  by  notice,  and 
that  therefore  trover  did  not  lie  by  mortgagee  against  the  vendee.  Cope  v. 
Eomeyne,  4  McLean,  384  (1848). 

34Burnside  v.  Twitchell,  43  N.  H.,  390  (1861).  See,  also,  Boydell  v. 
McMichael,  3  Tyrwh.,  974  (1834)  ;  s.  c,  1  Cr.  M.  &  K.,  177;  3  L.  J.  (N.  S.), 
Exch.,  264;  Hitchman  v.  Walton,  4  M.  &  W.,  409  (1838);  s.  c,  8  L.  J. 
(N.  S.),  Exch.,  31.  [See,  ante,  p.  *47.  Gill  v.  Weston,  110  Pa.  St.,  312, 
317  (1885)  ;  Mann  v.  English,  38  Up.  Can.  Q.  B.,  240,  250  (1875)  ;  see,  also, 
Brown  v.  Brookfield,  24  Nova  S.,  476  (1892).] 

[A  mortgagee,  after  condition  broken,  can  bring  trover  for  turf  removed 
by  the  mortgagor  without  license.  Wilbur  v.  Moulton,  127  Mass.,  509,  510 
(1879).] 

[Where  a  mortgagor  in  possession  after  condition  broken,  cuts  and  sells 
timber  without  objection  from  the  administrator  of  the  mortgagee  who  sees 
what  is  being  done,  the  latter  is  estopped  from  bringing  trover  against  the 
purchaser.     McKellop  v.  Jackman,  50  Vt.,  57,  62   (1877).] 

Aliter,  where  the  mortgage  is  considered  only  as  a  security.  See  Peter- 
son V.  Clark,  15  John.,  205  (1818).  [See,  ante,  p.  MQ.  Bobbins  v.  Sackett, 
23  Kan.,  301,  304  (1880).  See  Reynolds  v,  Deckman,  2  Can.  Law  T.,  261 
(Nova  S.,  1882).] 

[A  mortgagee  can  bring  trover  for  timber  or  other  fixtures  wrongfully 
removed;  but  where  the  mortgagor  is  allowed  to  retain  possession,  the 
assent  of  the  mortgagee  to  such  removal  will  be  implied  where  the  security 
is  not  impaired  and  it  is  good  husbandry.  Searle  v.  Sawyer,  127  Mass.,  491 
(1879).] 

[Where,  after  a  contract  of  sale  of  land,  the  vendee  taking  possession, 
the  vendor  mortgaged  the  land,  it  was  held  that  the  vendor,  and  not  the 
mortgagee  who  had  not  taken  possession,  was  the  proper  party  to  bring 
an  action  for  a  dwelling-house  placed  upon  the  land  by  the  vendee  and 
removed  by  him.    Reynolds  v.  Dechman,  2  Nova  S.  L.  R.,  459  (1881).] 

[Where  a  house  is  removed  from  land,  becoming  personal  property,  and 
remains  for  two  years  in  the  undisturbed  posHcssion  of  one  believing  the 
house  to  be  his,  the  statute  of  limitations  makes  such  house  his.  Bobbins 
V.  Sackett,  23  Kan.,  301,  305  (1880).] 

38  Dalton  V.  Whittcm,  3  Q.  B.,  961  (1842) ;  Clarke  v.  Holford,  2  C.  &  K., 
540  (1848). 

643 


*432  THE   LAW    OF   FIXTURES.  [CHAP,    XIII. 

tion  as  jxoods  and  chattels;  and  the  phiintilT  does  not  thereby 
waive  his  rijjht  of  maintaining  llie  illegality  of  the  distress  on 
the  ground  that  fixtures  cannot  be  distrained  for  rent;  the  land- 
lord cannot  commit  the  wrong  of  severing  fixtures  from  the 
realty,  and  then  take  advantage  of  such  wrong  and  treat  them 
as  goods  and  chattels  for  the  purpose  of  distress.^**  So,  a 
tenant  or  his  vendee  has  during  the  term  a  sufficient  interest 
in  the  fixtures  to  entitle  him  to  maintain  trover  against  a  third 
[*432]  *party  who  wrongfully  removes  and  converts  them,  al- 
tTiough  at  the  end  of  the  term  he  may  be  bound  to  leave  them 
for  the  use  of  the  landlord.^'^  And  if  a  house  be  blown  down 
and  a  stranger  takes  away  the  timber,  the  lessee  for  life  or  for 
years  may  bring  trover;  for  he  has  a  special  pi"operty  to  make 
use  of  the  same  for  the  purpose  of  rebuilding,  though  the  gen- 
eral property  be  in  the  reversioner. 3^'*  The  case  would  be  other- 
wise, however,  where  the  tenant  wrongfully  pulls  down  houses 
or  fells  timber,  for  in  that  case  the  lessor  shall  have  the  same.^^ 
Under  an  agreement  for  the  sale  of  land,  the  payment  of  the 
purchase  money  and  the  execution  of  the  deed  being  concurrent 
acts  to  be  done  in  the  future,  the  vendee  acquires  an  equitable 
interest  and  the  right  to  specific  performance  upon  payment 
made;  but  not  having  the  legal  title  nor  the  possession  he  can- 
not maintain  trover  for  an  intermediate  removal  of  fixtures  by 
the  vendor ;  for  at  the  time  of  the  conversion  he  must  have  had 
property  in  the  chattels,  general  or  special,  and  possession  or  the 
right  to  immediate  possession;  and  a  demand  of  the  fixtures 
prior  to  the  time  for  completing  the  agreement  and  delivery  of 
possession  of  the  premises  being  evidence  of  conversion  only, 
but  not  of  property,  will  not  help  the  matter.^" 

36Dalton  V.  Whittem,  3  Q.  B.,  961   (1842). 

STBoydell  v.  McMichael,  3  Tyrwh.,  974,  979  (1834),  per  Parke,  B.;  s.  c, 
1  Cr.  M.  &  K.,  177;  Hitchman  v.  Walton,  4  M.  &  W.,  409,  416  (1838)  ;  s.  c, 
8  L.  J.  (X.  S.),  Exch.,  31. 

38  See  Bull.  N.  P.,  33;  Per  Powel,  .J.,  on  Midland  Circuit,  Salk.  MSS., 
Bowles's  Case,  11  Co.,  82a  (1615);  Liford's  Case,  11  Co.,  48  a  (1614). 
[See,  ante,  p.  *50.] 

39  Bowles's  Case,  11  Co.,  81b  (1615).     [See,  ante,  p.  *49.] 

40  Tabor  v.  Eobinson,  36  Barb.,  483  (1862). 

But  in  an  action  upon  bonds  given  for  the  purchase  money  of  land,  the 
defendant  may  set  up  by  way  of  recoupment,  damages  for  the  removal  and 
conversion  of  fixtures  without  his  knowledge  -or  consent,  after  the  contract 

644 


CHAP.   XUI,]  TROVER.  *433 

But  where  the  plaintiff  under  license  from  the  owner  of  the 
soil  to  search  for  tin  ore,  had  in  searching  for  that  mineral 
made  certain  excavations  in  the  soil,  and  the  defendant  carted 
away  some  of  the  soil  so  thrown  out,  the  plaintiff  not  having 
abandoned  his  right  to  search  the  soil  so  thrown  out,  for  ore, 
*in  trover  for  the  soil  so  removed  it  was  held  that  the  [*433] 
plaintiff"  had  as  against  the  defendant,  a  mere  wrong-doer,  a 
sufficient  possessory  title  to  the  mass  thrown  out  to  maintain  the 
action.'*  1 

As  was  observed  in  a  preceding  section  with  reference  to  the 
action  of  replevin,  trover  is  not  the  proper  form  of  action  to  try 
the  title  to  land;  and  hence  it  does  not  lie  by  one  who  has  the 
right  of  possession,  and  who  might  recover  in  ejectment,  against 
one  in  the  actual  adverse  possession  of  the  land  setting  up  title 
to  it,  to  recover  the  value  of  fixtures,  stone,  gravel,  etc.,  removed 
from  the  land  by  such  party  in  possession.^^     Neither  can  the 

of  sale  and  before  a  formal  transfer  of  the  land  and  the  execution  of  the 
bonds.     Grand  Lodge  v.  Knox,  20  Mo.,  433  (1855). 

[One  holding  the  legal  title  to  land  can  not  maintain  trover  for  hay  and 
apples  severed  by  a  tenant  of  a  party  who  has  a  contract  for  the  purchase 
of  the  land,  as  long  as  the  latter  remains  in  possession.  Look  v.  Norton,  94 
Me.,  547,  550  (1901).] 

[A  purchaser  of  real  estate  at  execution  sale,  can  maintain  an  action  for 
the  conversion  of  logs  from  timber  cut  therefrom  between  the  time  of  sale 
and  the  expiration  of  the  period  of  redemption.  Whitney  v.  Huntington,  34 
Minn.,  458,  461   (1886).] 

4iNortham  v.  Bowden,  11  Exch.,  70  (1855);  s.  c,  24  L.  .L,  Exeh.,  237 
(1855). 

Where  the  plaintiffs  were  possessed  of  a  wharf  on  the  Thames,  in  front 
of  which  about  twenty  years  before  a  pile  of  wood  had  been  driven  into  the 
bed  of  the  river  by  the  then  occ-upiers  of  the  wharf,  the  i)hiintifT's  prede- 
cessors, and  had  remained  there  without  interruption  from  the  Crown  or 
conservators  of  the  river,  and  was  necessary  to  the  enjoyment  of  the  wharf. 
Held,  that  these  were  circumstances  from  which  the  court  could  properly 
draw  the  inference  that  the  pile  was  not  so  placed  with  a  view  of  its  perma- 
nent annexation  to  the  freehold  so  as  to  become  a  part  thereof,  but  that  it 
was  placed  there  by  virtue  of  an  easement  granted  by  the  Crown  or  whoever 
had  a  right  to  grant  it,  and  tli.it  there  was  a  sutlicient  possession  in  plainiifTs 
to  entitle  thorn  to  maintain  an  action  against  dofondnnts  for  negligently 
running  against  it  and  removing  it.  Lancaster  v.  Eve,  .I  C.  R.  (N.  8.),  717 
(18.59);  s.  C.-,  28  L.  .J.,  C.  P.,  235;  5  Jur.  (N.  S.),  683. 

♦2  Mather  v.  Trinity  Church,  3  S.  &  T{.,  .'^09  (1817).  Sec,  also,  ante,  §  3, 
p.  "417;  Ilutchins  v.  King,  1  Wall.,  .''.3  (1863). 

645 


*434  THE  LuVW   OF  FIXTURES.  [CIIAP.   XIII. 

rightful  owner  of  land  maintain  trover  for  corn,  fodder,  or  other 
crops  raised  on  the  land  by  one  in  adverse  possession  and  severed 
while  the  defendant  was  in  possession,  his  remedy  in  such  case 
being  by  an  action  for  the  mesne  profits;'*^  but  on  the  other 
hand  the  party  raising  and  sevei'ing  the  crops  under  such  cir- 
cumstances may  maintain  trover  against  the  owner  of  the  land 
for  their  conversion  by  him.^-* 

With  respect  to  what  amounts  to  a  conversion  sufficient  to 
maintain  the  action,  it  is  to  be  observed,  that,  in  general,  the 
mere  act  of  severing  a  fixture  (which  only  converts  it  into 
[*434J  *personalty),  is  insufficient;^'^  and  that,  in  order  to  con- 
stitute a  conversion,  which  is  the  gist  of  this  action,  there  must 
be  a  subsequent  asportation  or  some  unlawful  assumption  of 
dominion  over  the  thing  severed  for  the  benefit  of  the  party 
making  the  severance  or  some  person  other  than  the  owner  there- 
of, or  in  defiance  or  exclusion  of  the  owner's  right.'*'* 

43  Brothers  v.  Hurdle,  10  Ired.  Law,  490  (1849).  [Harrison  v.  Hoff,  102 
N.  C,  126,  128  (1889).] 

[Trover  can  not  be  maintained,  after  recovery  of  land,  for  timber  cut  and 
carried  away  by  the  defendant  pending  the  suit.  Gardner  v.  Peckham,  13 
E.  I.,  102,  104  (1880).] 

41  Branch  v.  Morrison,  5  Jones'  Law,  16  (1857);  s.  c,  6  Id.,  16. 

45  See  Addison  on  Torts,  §  467;  Houghton  v.  Butler,  4  Term,  364  (1791); 
Bristol  v.  Burt,  7  John.,  254  (1810)  ;  Big.  Lead.  Cas.  on  Torts,  389,  et  seq. 
See,  also.  Beck  v.  Denbigh,  8  C.  B.  (N.  S.),  888  (1860)  ;  s.  C,  6  Jur.  (N.  S.), 
998;  29  L.  J.,  C.  P.,  273.  [American  Telegraph  Co.  v.  Middleton,  80  N.  Y., 
408,  411  (1880);  see,  also,  Greenebaum  v.  Taylor,  102  Gal.,  624,  627 
(1894).] 

*<•>  See  Ferard  Fixt.,  295 ;  Addison  on  Torts,  §  467 ;  Houghton  v.  Butler,  4 
Term,  364  (1791).  [See  Fresno  Bank  v.  Husted,  49  Pac,  195,  197  (Gal., 
1897).] 

[Where  the  superintendent  of  a  poor-house,  under  direction  of  the  select- 
men of  the  town,  removed  a  fence  located  upon  the  land  of  the  town  by 
the  adjoining  landowner,  and,  in  so  doing,  carried  away  a  section  of  fence 
belonging  to  the  adjoining  landowner,  this  amounts  to  conversion  whether 
the  property  was  afterwards  wrongfully  detained  or  not.  Smith  v.  Golby, 
67  Me.,  169  (1878).] 

[Where  a  sheriff  levies  upon  fixtures,  and  follows  all  the  legal  forms  to 
make  the  lien  effective,  and  then  sells  the  fixtures,  it  constitutes  conversion. 
Scuddcr  v.  Anderson,  54  Mich.,  122,  124  (1884).] 

[If  the  owner  of  a  factory  to  which  is  attached  a  water-wheel  and  shaft- 
ing, which  another  person  has  the  right  to  remove,  refuses  to  return  them 
when  demanded,  this  might  not  be  conversion,  as  it  is  not  the  duty  of  the 

646 


CHAP.    XUl.j  TROVER,  *-134 

Since,  however,  trover  lies  only  for  the  conversion  of  per- 
sonal chattels,  it  is  well  settled  that  the  action  cannot  be 
maintained  for  the  recovery  of  fixtures  so  long  as  they  are 
annexed  to  and  constitute  a  part  of  the  realty ;  •*"   though  in 

landowner  to  take  out  the  property;  but  when  a  claim  of  ownership  accom- 
panies the  refusal,  it  amounts  to  an  appropriation  of  the  property.  And 
where  such  right  of  removal  results  from  a  reservation  in  a  deed  conveying 
a  starch  factory,  and  no  time  is  fixed  for  the  removal,  the  statute  of  limita- 
tions does  not  begin  to  run  until  a  claim  of  title  thereto  is  made  by  the 
landowner.     Straw  v.  Straw,  70  Vt.,  240,  243   (1897).] 

[It  is  not  necessary,  to  render  one  liable  in  trespass  or  trover,  that  there 
should  be  an  appropriation  of  the  thing  to  the  party's  own  use  or  bene- 
ficial enjoyment.  The  disposing  or  assuming  to  dispose  of  another  man's 
goods,  without  his  authority,  is  a  conversion  of  them.  Thus,  a  wrongful 
attachment  and  sale  of  a  growing  crop  without  further  intermeddling 
therewith,  is  a  conversion  thereof.  Mead  v.  Thompson,  78  111.,  62,  64 
(1875).] 

*"!  Ex  parte  Quincy,  1  Atk.,  478  (1750),  per  Lord  Hardwicke;  Eoffey  (or 
EufFey)  v.  Henderson,  17  Q.  B.,  574  (1851)  ;  s.  c,  16  Jur.,  84;  21  L.  J.,  Q. 
B.,  49;  Colegrave  v.  Dias  Santos,  2  B.  &  C,  76  (1823)  ;  Longstaflf  v.  Meagoe, 
2  Ad.  &  E.,  167  (1834)  ;  Kaddin  v.  Arnold,  116  Mass.,  270  (1874) ;  Guthrie 
V.  Jones,  108  Mass.,  191  (1871);  Prescott  v.  Wells,  3  Nev.,  82  (1867); 
Pierce  v.  Goddard,  22  Pick.,  559  (1839)  ;  Overton  v.  Williston,  31  Peun.  St., 
155  (1858).  See,  also,  Lee  v.  Kisdon,  7  Taunt.,  188  (1816);  Beck  v.  Den- 
bigh, 8  C.  B.  (N.  S.),  888  (1860) ;  s.  c,  6  Jur.  (N.  S.),  998;  29  L.  J.,  C.  P., 
273;  8  W.  R.,  392;  2  L.  T.  (N.  S.),  154;  Eichardson  v.  Copeland,  6  Gray, 
536  (1856)  ;  Clary  v.  Owen,  15  Gray,  522  (1860).  [Dewitz  v.  Shoencmau,  82 
111.  App.,  378,  379  (1899);  Leman  v.  Best,  30  111.  App.,  323,  325  (1888); 
Hopewell  Mills  v.  Taunton  Bank,  150  :\Iass.,  519,  523  (1S90)  ;  Detroit  & 
Bay  City  K.  R.  Co.  v.  Biisch,  43  Mich.,  571  (1880);  Morrison  v.  Berry,  42 
Mich.,  389,  394  (1880);  Geirke  v.  Schwartz,  45  N.  Y.  Supp.,  928,  929 
(1897)  ;  Darrah  v.  Baird,  HH  I'a.  St.,  265,  272  (1882),  aff 'g  12  Pitts.  Leg. 
J.,  240  (1882) ;  Oates  v.  Cameron,  7  Up.  Can.  Q.  B.,  228;  Bunnell  v.  Tiii>i)er, 
10  Up.  Can.  Q.  B.,  414,  422;  sec,  also,  Doran  v.  Willard,  14  N.  Brunsw., 
358  (1873).] 

[Bricks  and  rails  were  uixm  hiiid  at  the  time  it  was  sold  upon  execution. 
Afterwards  a  tenant  used  the  bricks  to  build  a  chimney,  and  the  rails  to 
build  a  fence.  Jleld,  that  an  action  of  trover  could  not  be  maintained  for 
the  brick  and  rails  while  annexed,  since  that  action  lies  only  for  the  con- 
version of  personal  chattels.     Thweat  v.  Stamps,  67  Ala.,  96.  98  (1880).] 

I  Where  thi*  owner  of  a  lot  gave  j)ermiHsi()n  for  a  liouse  to  be  moved 
thereon,  and  refused  to  allow  it  to  be  removed,  but  had  no  possession  of  it 
while  in  transitu,  he  is  not  guilty  of  conversion.  Northruj)  v.  Trask,  39 
Wis.,  515   (IS76).1 

[Trover  lies  for  a  cotton-screw  altlion;;!)  a  pormnncnt  fixture,  if  th« 
defendant  had  detached  it  from  the  j)laintiff'8  realty  and  moved  and  aflixed 

047 


*-i34  THE    LAW    OF    KlXTl'KES.  [CIIAP.    XUI. 

some  cases,  where  tenant's  fixtures  removable  as  against  the 
huidlortl  were  considered  by  the  court  as  personalty,  the  rule 
has  been  understood  to  be  otherwise."*^     Neither  a  tenant  nor 

it  to  his  owu,  as,  when  detached,  it  became  that  thiug  for  which  trover 
would  lie,  and  the  conversion  was  complete  at  that  moment,  and  the  right 
of  action  then  arose,  and  this  right  could  not  be  defeated  by  the  defendant's 
fastening  this  chattel  to  his  own  real  estate.  Woods  v.  McCall,  67  Ga.,  506, 
507  (ISSl).] 

*s  See  Moore  v.  Wood,  12  Abb.  Pr.,  393  (1860),  where  the  property  in  dis- 
pute consisted  of  shafting,  belts,  pulleys,  and  a  brick  chimney  sunk  three 
feet  into  the  ground  for  a  foundation  and  piercing  the  roof,  all  which  were 
put  on  the  demised  premises  by  a  tenant  for  the  purpose  of  his  business, 
and  for  a  refusal  on  the  part  of  the  landlord  to  allow  the  tenant  to  remove 
■which  upon  his  being  dispossessed  of  the  premises,  the  landlord  was  held 
liable,  as  constituting  a  conversion,  though  the  property  was  still  unsevered 
from  the  realty;  Villas  v.  Mason,  25  Wis.,  310,  327  (1870)  ;  Miller  v.  Baker, 
1  Met.,  27  (1840),  trees,  shrubs,  etc.,  planted  by  a  tenant;  Peck  v.  Knox,  1 
Sweeney,  311  (1869)  ;  Finney  v.  Watkins,  13  Mo.,  291  (1850),  where  the 
property  in  question  was  a  hydraulic  press  used  by  a  tallow  chandler,  put 
into  a  hole  in  the  ground  walled  up  with  solid  masonry,  the  bottom  of  the 
cylinder  resting  on  flanges  on  the  stone  wall  even  with  the  floor,  but  not 
otherwise  attached  to  the  wall  than  by  resting  on  it,  and  the  part  of  the 
press  composed  of  plank  around  the  cylinder  being  nailed  to  the  floor  and 
braced  to  steady  the  press,  which  was  allowed  to  be  recovered  in  trover  by 
the  vendee  of  the  tenant  as  against  the  landlord,  who  had  got  into  posses- 
sion of  it  and  the  premises  without  plaintiff's  consent,  and  refused  to 
deliver  it  up. 

All  these  cases  were  decided  on  the  ground  that  as  between  landlord  and 
tenant  fixtures  removable  by  the  tenant  are  personal  property,  from  which 
the  conclusion  that  trover  lies  follows  naturally  enough.  The  cases  seem, 
however,  open  to  the  criticism  that  their  assumed  premises  are  incorrect  and 
opposed  to  the  weight  of  authority.  See  the  cases  already  cited  and  those 
cited  post  in  this  chapter. 

Between  the  cases  of  Wansbrough  v.  Maton,  4  Ad.  &  E.,  884  (1836)  ;  s.  c, 
6  N.  &  M.,  367;  2  H.  &  W.,  37;  4  L.  J.  (N.  S.),  K.  B.,  154;  5  Id.,  150  (the 
case  of  a  wooden  barn  built  by  a  tenant  and  resting  by  its  weight  alone  on 
staddles)  ;  Wittshear  v.  Cottrell,  1  El.  &  BI.,  674  (1853)  ;  s.  c,  22  L.  J.,  Q, 
B.,  177;  17  Jur.,  758;  18  Eng.  L.  &  Eq.,  142  (a  granary  likewise  resting  on 
staddles)  ;  Davis  v.  Jones,  2  B.  &  Aid.,  165  (1818),  (where  parts  of  a  ma- 
chine called  .jibs,  put  up  by  a  tenant,  and  fastened  by  pins  upon  caps  and 
steps,  were  held  recoverable  in  trover),  and  the  cases  cited  to  sustain  the 
text,  there  is  no  conflict;  because  these  cases  proceed  upon  the  ground  that 
the  things  which  were  the  subjects  of  the  actions  were  not  fixtures  at  all, 
but  mere  personal  chattels.  See  Minshall  v.  Lloyd,  2  M.  &  W.,  460  (1837), 
per  Parke,  B. 

[In  the  following  cases  trover  was  allowed  for  removable  fixtures:    TJpde- 

648 


CHAP.   XIII.]  TROVER.  *435 

♦his  assignee  can  maintain  trover  against  the  landlord,  [*435] 
or  an  incoming  tenant,  for  the  recovery  of  fixtures  left  by  him 
annexed  to  the  demised  premises  after  the  expiration  of  the 
tenancy.^  But  where  a  lessee  mortgaged  his  tenant's  fixtures 
and  afterwards  surrendered  his  lease  to  the  lessor  who  granted 
a  new  lease  to  a  third  person  who  refused  to  deliver  up  the 
fixtures  to  the  mortgagees,  it  was  held  that  the  mortgagees 
might  maintain  an  action  against  the  defendant  for  preventing 
them  from  exercising  their  right  to  sever,  and  in  such  action 
recover  the  value  of  the  fixtures,  as  severed. ^  Neither  can  a 
♦tenant,  even  during  his  term,  maintain  trover  for  fix-  [*436] 
tures  while  annexed  to  the  freehold.^ 

graff  V.  Lesem,  15  Colo.  App.,  297;  Sbapira  v.  Barney,  30  Minn.,  59  (1882)  ; 
Smusch  V.  Kolm,  49  X.  Y.  Supp.,  176,  178  (1898) ;  Thorn  v.  Sutherland,  123 
N.  Y.,  236,  240  (1890);  Eosenau  v.  Syring,  25  Ore.,  386,  390  (1894); 
Watts  V.  Lehman,  107  Pa.  St.,  106,  112  (1884)  ;  see,  also,  Broaddus  v. 
Smith,  121  Ala.,  335,  339  (1898)  ;  Sattler  v.  Opperman,  30  Pitts.  Leg.  J., 
205  (1900)  ;  and  ante,  p.  *408.] 

1  Lyde  v.  Eussell,  1  B.  &  Ad.,  394  (1830) ;  Minshall  v.  Lloyd,  2  M.  &  W., 
450  (1837)  ;  Wilde  v.  Waters,  16  C.  B.,  637  (1855)  ;  s.  c,  24  L.  J.,  C.  P., 
193;  1  Jur.  (N.  S.),  1021;  3  W.  E.,  570;  32  Eng.  L.  &  Eq.,  422;  Eoffey  or 
(Euffey)  V.  Henderson,  17  Q.  B.,  574  (1851)  ;  Davis  v.  Buffum,  51  Me.,  160 
(1863) ;  Stockwell  v.  Marks,  17  Me.,  455  (1840)  ;  Preston  v.  Briggs,  16  Vt., 
129  (1844),  per  Eedfield,  J.;  Ex  parte  Eeynal,  2  M.  D.  &  DeG.,  461  (1841), 
per  Holroyd,  Com'r.  [Donnelly  v.  Thieben,  9  111.  App.,  495,  499  (1881); 
Walsh  V.  Sichler,  20  Mo.  App.,  374,  379  (1886).] 

Neither  in  such  a  case  can  he  maintain  trover  therefor  after  the  landlord 
has  severed  them  from  the  freehold.    Lyde  v.  Eussell  (supra). 

[The  acceptance  of  the  keys  and  possession  of  a  building  by  the  lessor 
does  not  constitute  a  conversion  of  the  fixtures  therein.  Felcher  v.  McMillan, 
103  Mich.,  494,  500  (1894).] 

2  London,  etc.,  Loan  &  Discount  Co.  v.  Drake,  6  C.  B.  (N.  S.),  798  (1859) ; 
S.  C,  5  .Jur.  (N.  S.),  1407;  28  L.  J.,  C.  P.,  297. 

[If  the  mortgagee  of  a  boiler,  upon  his  attcni])ting  to  remove  it,  is 
forbidden  to  do  so  by  those  in  possession  of  the  promises,  that  constitutes 
a  conversion  of  the  property  without  any  demand  being  m:i(l(\  Badger  v. 
Batavia  Paper  Mfg.  Co.,  70  111.,  302,  305   (1873).] 

3  Mackintosh  v.  Trotter,  3  M.  &  W.,  184  (1838). 

[There  can  be  no  conversion  of  fixtures  by  a  landlord  while  the  tenant 
is  in  possession  of  and  using  them,  altliougli  the  latter  has  been  enjoined 
from  removing  same.    Felcher  v.  McMillan,  103  Mirli..   194,  500  (1894).] 

[While-  a  lessee  of  land  remains  in  possession  thereof  and  of  a  house 
•which  he  built  and  has  a  right  to  remove,  he  can  not  maintain  an  action 

649 


*436  THE   LAW   OP   PIXTMHES.  [CHAP.    XIII, 

But  the  above  remarks  do  not  apply  to  articles  which  are 
in  their  nature  furnitiu'e  merely,  which  though  fastened  to  the 
walls  for  safety  or  convenience  do  not  lose  their  character  as 
personal  chattels  and  become  a  part  of  the  realty;  and  hence 
for  such  articles  trover  will  lie  after  demand  therefor  made  by 
the  tenant  of  the  landlord  and  refusal,  though  they  are  still  at- 
tached to  the  walls  and  have  not  been  disannexed  by  the  land- 
lord.'* It  seems  also  well  settled  that  trover  lies  in  behalf  of  the 
riirhtful  owner  for  the  conversion  of  a  house  or  other  structure 
built  on  the  land  of  another  with  his  consent  or  under  an  agree- 
ment express  or  implied  that  it  shall  continue  personalty,  if 
averred  and  proved  to  be  personal  property,  .notwithstanding  it 
has  not  actually  been  severed  from  the  land  whereon  it  was 
erected.^    And  in  such  a  case,  the  thing  in  question  being  already 

for  the  conversion  of  the  house  although  his  lessor  sold  the  lots,  and  the 
vendee  exacts  a  much  higher  rent.  Heighes  v.  Dollarville  Co.,  113  Mich., 
518,  519  (1897).] 

*  Guthrie  v.  Jones,  108  Mass.,  191  (1871).  The  articles  in  question  which 
were  in  this  case  considered  furniture,  were  a  glass  case,  a  case  of  drawers, 
and  a  mirror  about  six  feet  long  by  two  feet  wide,  bought  by  the  tenant  of 
an  eating  house  where  intoxicating  liquors  were  sold  to  use  in  his  business, 
and  screwed  or  nailed  by  him  to  the  walls,  and  gas-fixtures  (so  called) 
bought  by  him  for  the  same  purpose  and  -screwed  upon  the  gas-pipes  fastened 
to  the  ceiling.  But  in  the  same  case  two  counters,  called  respectively  an 
oyster  and  trench  counter,  and  a  bar,  both  brought  into  the  room  entire  and 
fastened  to  the  floor  by  nails  and  with  iron  knees,  though  removable  trade 
fixtures,  were  held  to  have  lost  their  character  as  movable  chattels,  while 
thus  attached,  and  hence  not  to  be  the  subjects  of  trover.  See,  also,  Duke 
of  Buckingham  v.  Lord  Pembroke,  3  Keb.,  74  (1683).  [Smusch  v.  Kohn, 
49  N.  Y.  Supp.,  176,  178  (1898)  ;  see,  also.  Morrow  v.  Burney,  2  Ind.  Ter., 
440,  443  (1899)  ;  and  ante,  p.  *78.] 

[Where  a  .tenant  voluntarily  surrenders  possession,  and  then  demands 
possession  of  fixtures,  the  landlord  is  entitled  to  reasonable  time  to  make 
reply  before  being  guilty  of  conversion.  In  this  case  a  reply  within  twenty- 
four  hours,  Sunday  excepted,  was  held  reasonable,  although  one  was  prom- 
ised the  same  day.    Felcher  v.  McMillan,  103  Mich.,  494,  500  (1894).] 

5  Davis  v.  Taylor,  41  111.,  405  (1866);  Hinckley  v.  Baxter,  13  Allen,  139 
(1866)  ;  Russell  v.  Richards,  10  Me.,  429  (1833)  ;  s.  c,  11  Id.,  371  (1834)  ; 
Osgood  V.  Howard,  6  Id.,  452  (1830);  Hilbourne  v.  Brown,  12  Id.,  162 
(1835)  ;  Pullen  v.  Bell,  40  Id.,  314  (1855)  ;  Adams  v.  Goddard,  48  Me.,  212 
(1859)  ;  39  Id.,  144;  Tift  v.  Horton,  53  N.  Y.,  377  (1873)  ;  Smith  v.  Benson, 
1  Hill,  176  (1841)  ;  Ring  v.  Billings,  51  111.,  475  (1869),  where  the  things  in 
dispute  were  wine  plants.  [Watertown  Steam  Engine  Co.  v.  Davis,  5 
Houston,   192,   204    (Del.,   1877);   Walker  v.   Schindel,  58   Md.,   360,    369 

650 


CHAP.   XIII.]  TROVER.  *4:37 

personal  property,  actual  severance  and  asportation  are  un- 
necessary in  order  to  constitute  a  conversion,  and  the  question 
as  to  whether  or  not  there  has  been  a  conversion  *of  [*437] 
the  thing  in  controversy,  is  to  be  determined  by  the  general  rules 
of  law  applicable  to  that  question,  which,  the  scope  of  this  work 
forbidding,  will  not  be  here  considered.^ 

(1882) ;  Korbe  v.  Barbour,  130  Mass.,  255,  259  (1881) ;  Dolliver  v.  Ela, 
128  Mass.,  557,  559  (1880);  Stout  v.  Stoppel,  30  Minn.,  56,  58  (1882); 
Lewis  V.  Ocean  Pier  Co.,  125  N.  Y.,  341,  352  (1891);  see,  also,  Griffin  v. 
Eansdell,  71  Ind.,  440,  441  (1880)  ;  Seidel  v.  Cornwall,  166  Mo.,  51,  55 
(1901);  Walker  v.  Grand  Rapids  Mill  Co.,  70  Wis.,  92   (1887).] 

See,  however,  Prescott  v.  Wells,  3  Nev.,  82,  90  (1867)  ;  Eaddin  v.  Arnold, 
116  Mass.,  270  (1874). 

[Where  the  opposing  parties  in  a  suit  concerning  a  building,  have  each 
treated  it  as  personal  property,  and  Avhere  neither  would  have  any  interest 
therein  unless  it  was  personal  property,  and  there  is  no  evidence  showing 
it  to  be  real  property,  it  is  error  for  a  trial  court  to  nonsuit  the  plaintiff 
in  an  action  for  conversion,  on  the  ground  that  the  building  is  real  prop- 
erty. Wheeler  v.  ISIcFerron,  33  Ore.,  22,  25  (1898).  See  Hughes  v.  Edisto 
Shingle  Co.,  51  S.  C,  1,  30  (1897).] 

[Where  an  action  of  trover  was  brought  for  a  "three-story  frame  flat- 
roof  dwelling-house,  twenty-five  feet  front  by  forty  feet  deep,"  which  the 
plaintiff  avers  was  personal  property,  and  that  the  building  was  erected  by 
one  by  permission  upon  the  land  of  another,  a  demurrer,  that  the  structure 
was  real  estate,  can  not  be  sustained,  as  that  fact  is  capable  of  trial  by 
jury,  and  should  bo  pleaded.  Under  the  facts  presented,  there  is  no 
inevitable  presumption  that  the  house  was  realty.  Pope  v.  Skinkle,  45  N.  J. 
Law,  39  (1883).  But  recovery  for  the  conversion  of  a  house  built  upon 
the  land  of  another,  can  not  be  had  if  no  circumstances  are  shown  which 
would  make  the  house  a  personal  chattel.  Ekstrom  v.  Hall,  90  Me.,  186, 
192  (1897).] 

[Where  a  water-wheel  and  shafting  in  a  starch-factory,  which  are  so 
attached  as  to  be  a  part  of  the  realty,  are  reserved  in  a  deed  conveying 
the  factory,  it  is  a  severance  of  them  in  law,  and  they  may  be  recovered  by 
the  grantor  as  personal  chattels  in  an  action  of  trover.  Straw  v.  Straw, 
70  Vt.,  240,  242   (1897).] 

[See  Harris  v.  Powers,  57  Ala.,  139,  144  (1876),  which  was  an  action  of 
trover  for  a  house.  A  count  in  case  may  bo  joined  for  a  denial  of  the 
privilege  to  remove.] 

1  See  the  cases  cited  m  next  note  {supra),  for  illustrations  of  what  has 
been  held  to  bo  a  conversion  in  the  absence  of  severance  and  asportation. 
See,  also,  Parker  v.  Goddard,  39  Me.,  144  (1855);  48  Id.,  212;  Dame  v. 
Dame,  38  N.  H.,  4.33  (18.'59);  Beardsley  v.  Sherman,  1  Oaly,  325  (1863); 
Davis  v.  Buffum,  51  Me.,  160  (1863);  Wansbrough  v.  Maton,  4  Ad.  &  E., 
884  (1836);  s.  c,  6  N.  &  M.,  367;  2  H.  &  W.,  37.     [Thweat  v.  Stamps, 

651 


*-i37  THE  LAW   OP  FIXTURES.  [CilAP,   XIU. 

As  respects  the  i)leadiiii:;s  in  this  form  of  action,  if  the  declara- 
tion shows  that  the  plaint  ill'  was  possessed  of  the  things  in  dis- 
pute, ut  iJe  bonis  propriis,  it  is  suOicient,  though  the  things 
named  are  things  which  seem  annexed  to  the  freehold;  for  that 
will  not  be  intended  when  they  are  named  de  bonis  propriis? 
Thus,  in  Wood  v.  Smith,  the  declaration  alleged  that  the  plain- 
tiff was  possessed  ut  de  bonis  propriis,  of  a  portal  with  hinges, 
a  hand-mill,  a  lead,  and  a  washing- fat,  and  lost  them,  etc.;  to 
which  defendant  pleaded  not  guilty ;  and  after  verdict  for  plain- 
tiff", it  was  moved  in  arrest  of  judgment  that  these  things  ap- 
peared to  be  fixed  to  the  house,  were  as  parcel  thereof,  and  not 
accounted  as  goods,  and  therefore  the  action  did  not  lie  for 
them ;  for,  as  it  was  argued,  the  portal  was  the  door  of  the  house, 
and  the  hand-mill  and  the  lead  (which  was  a  brewing  lead),  and 

67  Ala.,  96,  98  (1880);  Leman  v.  Best,  30  111.  App.,  323,  326  (1888); 
DoUiver  v.  Ela,  128  Mass.,  557,  560  (1880);  Edmundson  v.  Brie,  136 
Mass.,  189,  191  (1883);  Ingersoll  v.  Barnes,  47  Mich.,  104,  107;  Nei- 
swanger  v.  Squier,  73  Mo.,  192,  198  (1880);  Stackpole  v.  Eastern  E.  R., 
62  N.  H.,  493,  495  (1883);  Snow  v.  Perkins,  60  N.  H.,  493,  495  (1881); 
Johnston  v.  Ross,  22  App.  Div.,  631  (N,  Y.,  1897)  ;  Waller  v.  Bowling, 
108  N.  C,  289  (1891);  Vulcan  Iron  Co.  v.  Rapid  City  Elevator  Co.,  9 
Man.,  577,  582  (1894);  see,  also,  Chalifoux  v.  Potter,  113  Ala.,  215  (1896); 
Carper  v.  Risdon,  76  Pac,  744,  746  (Colo.  App.,  1904)  ;  Heighes  v.  Dol- 
larville  Co.,  113  Mich.,  518,  519  (1897);  Wilson  v.  Cummings,  53  N.  Y. 
St.  R.,  584  (1893);  Allen  v.  Dent,  72  Tenn.,  676  (1880);  Argles  v. 
McMath,  26  Ont.,  224,  247  (1895),  aff'd  23  Ont.  App.,  44,  47  (1896); 
Poison  V.  Degeer,   12  Ont.,  275    (1886).] 

[Where  a  tenant  built  a  corn-crib  for  his  own  use  upon  the  demised 
farm,  with  the  express  understanding  that,  when  he  left  the  place,  he 
could  take  the  lumber  with  him  or  be  paid  for  it,  he  cannot  recover  its 
value  in  the  absence  of  evidence  showing  a  refusal  to  permit  the  removal 
of  the  lumber  or  that  a  demand  was  made  for  it.  Jared  v.  Vanvleet,  13 
111.  App.,  334,  336    (1883).] 

2  Wood  V.  Smith,  Cro.  Jac,  129  (1606);  Com.  Dig.,  Action  upon  the 
Case,  Trover,  G  1;  Davis  v.  Taylor,  41  111.,  407  (1866),  where  the  subject 
of  the  action  was  a  house  which  was  described  in  the  declaration  as  goods 
and  chattels.  See,  also,  Campbell  v.  O'Neill,  64  Pa.  St.,  290  (1870);  Earl 
of  Bedford  v.  Smith,  Dy.,  108b  (1690) ;  Kimpton  v.  Eve,  2  Ves.  &  Bea., 
349   (1813);  Niblet  v.  Smith,  4  Term,  504   (1792). 

See,  however,  Pyot  v.  St.  John,  Cro.  Jac,  329  (1609),  where  a  shelf  not 
alleged  to  be  fixed  was,  on  error  brought,  intended  to  be  so.  So  in  Anon., 
2  Vent.,  214  (1690),  as  to  a  rack  in  a  stable.  In  these  cases,  however,  the 
action  was  covenant,  and  the  declaration  did  not  contain  the  words  ut  de 
bonis  propriis. 

652 


CHAP.   Xm.]  TROVER.  *438 

the  washing-fat  (which  was  parcel  of  the  brewing  vessels)  were 
always  fixed  things  going  to  the  heir  and  not  to  the  executor. 
Sed  non  allocatur;  for  it  was  alleged  in  the  declaration,  that  the 
plaintiff  was  possessed  of  them  ut  de  bonis  propriis;  and  it  might 
be  that  those  things  were  severed  from  the  freehold,  and  things 
lying  by;  and  it  shall  be  *so  intended  when  the  plaintiff  [*438] 
so  declares;  and  the  contrary  appears  not  to  the  court  by  any 
matters  shown  to  them  by  the  defendant's  plea. 

And,  where  the  declaration  in  trover  was  for  "goods,  chat- 
tels and  fixtures, ' '  and  a  verdict  was  found  for  the  plaintiffs  on 
the  whole  declaration  with  general  damages;  upon  a  motion 
in  arrest  of  judgment  it  was  held  by  the  Court  of  Exchequer 
that,  though,  if  it  had  clearly  appeared  that  the  plaintiff  meant 
to  sue  in  respect  of  fixtures  properly  so  called — things  affixed 
to  the  freehold — the  declaration  after  such  assessment  of  gen- 
eral damages  would  have  been  bad,  yet,  since  after  verdict 
every  reasonable  intendment  ought  to  be  made  in  favor  of  the 
declaration,  and  since  the  word  "fixtures"  does  not  necessarily 
import  things  affixed  to  the  freehold,  but  only  means  some- 
thing fixed  to  another,  and  since  every  article  enumerated  in 
the  declaration  might  be  a  purely  movable  chattel,  the  word 
ought  to  be  understood  in  such  a  sense  as  would  support  the 
declaration,  and  that  it  must  be  presumed  that  the  judge  who 
tried  the  cause  would  not  have  directed  the  jury  to  find,  and 
that  the  jury  would  not  have  found,  damages  for  the  articles 
claimed  under  the  name  of  fixtures,  if  it  was  improper  that 
damages  should  be  given  in  respect  to  them;  and  the  verdict 
having  been  found  generally,  the  things  in  (|uestion  must  be 
intended  to  have  been  fixtures  attached  to  other  things  which 
were  in  themselves  movable.^ 

1  Sheen  v.  Rickie,  5  M.  &  W.,  175  (1839);  s.  C,  7  Dowl.  Pr.,  335.  See, 
also,  Carr  v.  Burdiss,  5  Tyr.,  309  (1835)  ;  Baldwin  v.  Walker,  21  Conn., 
168  (1851),  where  in  referring  to  machinery  in  a  factory,  it  was  stated 
that  where  not  shown  to  be  perHonalty  it  may  as  well  be  presumed  to  be 
a  part  of  the  building  as  otherwise.  [See  Meyers  v.  Marsh,  2  Up.  Can., 
Q.  B.,  185.] 

[In  UpdegrafT  v.  Leaem,  15  Colo.  App.,  'J97,  301  (1900),  a  change  of 
venue  was  asked  by  the  defendant  on  the  theory  that  the  suit  was  brought 
for  the  determination  of  some  kind  of  interest  in  nril  o«tatc;  but  his 
motion  was  overruled.  The  complaint  was  framed  ui)oii  Ihe  liyiicithesis 
that   the  articles   were   personal   property;    if   they   had   been  incorporated 

65.^ 


•438  THE   LuVW   OF   FIXTURES.  [CIIAP.   XIII. 

A  question  has  also  been  made  in  relation  to  this  action,  as 
well  as  the  action  of  trespass  de  bonis  asportatis,  whether  trover 
can  be  maintained  in  a  case  where  the  severance  and  removal 
are  one  continuous  and  entire  act;  and  the  better  opinion  seems 
to  be  that  the  action  lies,  notwithstanding  such  entirety .^ 

into  real  estate  there  could  be  no  recovery.  But  in  Darrah  v.  Baird,  101 
Pa.  St.,  265  (1882),  it  was  said  that  trover  does  not  lie  for  fixtures  eo 
nomine.     While  they  remain  attached  they  are  a  part  of  the  freehold.] 

2  See  ante  §  4. 

Mr.  Ferard  in  his  work  on  Fixtures  (page  299),  thus  discusses  this  sub- 
ject :  ' '  There  does  not  appear  to  be  any  case  in  which  this  question  has 
been  discussed  with  reference  to  the  doctrine  of  fixtures;  but  it  seems  to 
have  arisen  incidentally  in  respect  of  the  cutting  down  and  carrying  away 
of  timber. 

"In  2  Kolle's  Ab.,  119,  tit.  Maeresme,  it  is  laid  down,  that  if  lessee  for 
life  or  years  cuts  timber  trees,  and  immediately  barks  them  and  carries 
them  away,  yet  they  belong  to  the  lessor  who  has  the  inheritance;  for  they 
are  parcel  of  the  inheritance;  and  the  lessor  may  have  trover  and  con- 
version for  them,  although  he  never  seizes  them  before  the  carrying  them 
away,  and  that  the  lessee  carried  them  away  immediately  after  the  felling 
and  barking,  so  that  all  was  but  one  entire  act.  Between  Berrie  &  Herde, 
adjudged  upon  a  special  verdict  in  B.  E.  This  case  of  Berry  v.  Heard 
is  found  in  several  of  the  books  of  reports,  and  is  stated  in  a  manner 
somewhat  differently  in  each  of  them  (a).  It  established  a  principle 
which  had  been  for  a  long  time  doubted,  viz.,  that  a  landlord  has  such  a 
possession  of  timber  cut  down  during  the  continuance  of  a  lease,  that  he 
could  maintain  trover  for  it;  because  the  lessee  has  only  an  interest  in  it 
while  it  was  growing,  and  which  determined  the  instant  it  was  cut  down. 
This  was,  in  fact,  the  principal  question  raised  in  the  case,  and  the 
observations  of  the  court  are  for  the  most  part  applied  to  this  point.  It 
appears,  however,  from  a  reference  to  the  case,  that  the  court  did  also 
take  into  consideration  the  objection  as  to  the  cutting  and  carrying  away 
of  the  trees  being  one  continued  act.  For  they  advert  to  the  rule  of  law, 
that  in  criminal  cases  such  a  taking  would  be  no  felony;  and,  according 
to  the  report  of  the  case  in  Palmer,  Mr.  Just.  Doddridge  is  said  to  have 
remarked,  that  in  respect  of  the  barking  of  the  tree,  there  must  have  been 
an  interval  between  it  and  the  cutting  down  of  the  tree   (6). 

"There  is  another  case,  Udal  v.  Udal  (c),  in  which  the  same  point  arose, 
and  which  has  been  mentioned  on  a  former  occasion.  In  the  discussion  of 
that  case,  it  is  said  to  have  been  agreed  by  the  court,  that  an  action  of  tres- 
pass vi  et  armis  would  lie  against  a  lessee  for  the  taking  and  carrying  away 


(o)   Palm.,  327;  Sir  W.  Jones,  255;  Bend.,  141;  Cro.  Car..  242. 
(ft)  And  see,  per  Houghton,  J.,  in  the  same  report, 
(c)  Aleyn,  82. 

654 


CHAP.   XIII.]  TROVER.  *439 

*Although  the  actions  of  trover  and  trespass  de  honis  [*439] 
asportatis  are  for  the  most  part  concurrent  remedies,  trover  is 
in  some  respects  more  extensive  in  its  application  than  trespass 
*de  bonis,  and  may  in  some  cases  be  maintained  where  [*440] 
the  latter  does  not  lie.  Thus,  where  the  sheriff  upon  a  wa-it  of 
extent  seized  a  furnace  fixed  to  the  land,  and  sold  and  delivered 
it  to  a  third  person,  an  action  of  trespass  was  held  not  to  lie 
against  such  purchaser,  because,  although  the  sheriff  could  not 
lawfully  sell  it,  it  being  fixed  to  the  land,  yet  it  came  into  the 

of  trees,  if  the  same  be  not  as  one  continued  act.  The  case  itself  was  an 
action  of  trover,  and  the  effect  of  the  decision,  according  to  the  note  in 
Comjn's  Digest,  Biens,  H,  was,  that  a  lessor  may  maintain  trover  for  the 
bark  of  trees  cut,  although  they  are  carried  away  or  converted  at  the  time 
of  cutting,  or  afterwards.  It  is  observable,  that  in  the  judgment  of  this 
case,  the  above  mentioned  decision  of  Berry  v.  Heard  was  referred  to  by 
the  court,  and  in  terms  which  in  substance  correspond  with  the  abridgement 
of  it  given  by  Eolle. 

' '  There  is  also  a  further  case,  which  may,  perhaps,  deserve  to  be  noticed 
in  reference  to  this  subject.  In  Noy's  Eep.,  125,  in  the  case  of  Sir  Jos. 
Skidnes  v.  Huson,  it  was  determined,  that  if  a  stranger  enters  my 
close  and  cuts  my  trees  and  carries  them  away  I  may  have  trover,  although 
that  after  the  cutting  and  before  the  carrying  away  I  could  not  claim 
them,  and  no  actual  possession  in  me.  The  decision  of  this  case,  however, 
seems  rather  to  turn  upon  the  right  of  property  in  the  trees,  than  upon 
the  form  of  action,  or  the  nature  of  the  injury  complained  of.  Since  the 
determination  of  these  early  cases,  the  point  does  not  appear  to  have  been 
the  subject  of  legal  discussion.  It  was,  however,  adverted  to  by  the  Court 
of  Common  Pleas  on  one  occasion.  For,  in  the  case  of  Clark  v.  Calvert  (a). 
Chief  Justice  Dallas  is  reported  to  have  proposed  the  question,  whether  an 
action  of  trover  could  bo  maintained  for  trees  cut  down  and  carried  away 
at  the  same  time?  In  criminal  law,  indeed,  it  is  a  clearly  established  rule 
that  there  must  be  an  interval  between  the  severance  and  removal  of  a 
thing  to  make  the  taking  of  it  a  felony.  But  the  principle  upon  which 
this  rule  proceeds  in  criminal  cases,  seems  in  some  essential  particulars 
to  be  inapplicable  to  proceedings  of  a  civil  nature.  Perhaps  the  subse- 
quent detention  of  the  article  in  a  chattel  state  may  be  thought  to  amount 
to  a  conversion,  for  which  an  action  of  trover  might  be  sustained.  And 
at  all  events,  a  very  short  interval  between  the  acts  of  severing  and  taking 
away  the  fixture,  would  bo  sufficient  to  remove  an  objection  so  very  techni- 
cal in  its  nature.  And,  in  practice,  it  may  bo  found  a  useful  precaution, 
to  make  a  di'mand  of  the  property  previous  to  bringing  the  action,  because 
a  refusal  after  demand  would  probably  bo  deemed  evidence  of  a  new  con- 


(rt)   3  B.  Moore,  107.     And  see  Davis  v.  Connop,  1  Price,  53. 

655 


*44:1  THE   LAW   OF  FIXTURES.  [CHAP.   Xm. 

defendant's  possession  without  any  wrong  on  his  part;^  for,  as 
was  observed  by  the  court  in  the  case  just  cited,  if  a  stranger 
takes  my  horse,  and  sells  him,  a  trespass  will  not  lie  against  the 
vendee,  but  a  detinue.  But  if  one  sells  my  horse,  and  a  stranger 
[*441j  takes  him,  lie  is  a  trespasser.  In  this  case  *an  action 
of  trover  could  proliably  have  been  maintained  for  the  recovery 
of  the  value  of  the  furnace  without  any  demand  thereof  and  re- 
fusal,^  and  very  clearly  after  demand  and  refusal. 

As  respects  the  measure  of  damages  in  the  action  of  trover 
for  the  conversion  of  fixtures  wrongfully  severed,  it  is  well  set- 
tled that  the  value  of  the  fixtures  in  their  severed  state  only, 
as  chattels,  can  be  recovered,  and  not  their  value  in  an  affixed 
state,  or  as  the  same  would  be  estimated  between  an  incoming 
and  an  outgoing  tenant.^ 

[An  action  was  brought  in  New  York  for  maliciously  cutting  down  and 
converting  telegraph  poles  in  New  Jersey.  Held,  that  the  plaintiff  could 
not  recover,  as  the  poles  were  realty,  and  the  remedy  should  be  trespass 
quare  clausum  f regit,  which  is  not  transitory;  nor  could  recovery  be  had 
on  the  ground  that  the  severed  poles  became  personalty,  as  the  cutting  and 
removal  was  one  continuous  transaction.  American  Telegraph  Co.  v. 
Middleton,   80   N.   Y.,  408,   411    (1880).] 

iDay  V.  Austin,  Owen,  70  (1595);  2  Eoll.  Abr.,  Tresp.,  p.  556,  pi.  18; 
Bro.  Abr.  Tresp.,  pi.  48. 

See,  however,  the  case  above  cited,  under  the  name  of  Day  v.  Bisbitch, 
as  reported  in  Cro.  Eliz.,  374,  where,  as  to  the  point  that  the  action  lay  not 
against  the  defendant,  because  he  had  the  thing  by  delivery  of  another 
and  not  by  his  own  taking,  it  is  said  that  the  matter  was  not  much  insisted 
upon,  because  he  was  present  and  took  it,  and  so  was  an  immediate  tres- 
passer. 

[A  sheriff  levied  upon  all  right  of,  in  and  to  a  leasehold  interest  in 
land,  ' '  on  which  is  erected  a  stationary  steam  saw  mill,  with  engine  and 
boiler,"  etc.,  and  subsequently  sold  the  leasehold  interest  "with  the  im- 
provements, ' '  but  did  not  disturb  nor  pretend  to  take  manual  possession 
of  the  premises.  An  action  of  trespass  was  brought  against  him  by  one 
who  had  bought  the  saw  mill  prior  to  the  levy.  Reld,  that  the  sheriff 
■was  not  liable,  as  the  property  sold  was  an  interest  in  realty,  and  he  had 
never  taken  the  fixtures  into  his  personal  custody.  Eale  v.  Giebner  114 
Pa.  St.,  381   (1886).] 

2  See  Eiley  v.  Boston  Water  Power  Co.,  11  Cush.,  11  (1853);  Farrant  v. 
Thompson,  2  D.  &  R.,  1   (1822)  ;  s.  c,  5  B.  &  Aid.,  826. 

3  Clarke  v.  Holford,  2  C.  &  K.,  540  (1848)  ;  McGregor  v.  High,  21  L.  T. 
(N.  S.),  803  (1870);  Moore  v.  Wood,  12  Abb.  Pr.,  393  (1860).  The  ar- 
ticles in  question  in  Moore  v.  Wood,  were  a  brick  chimney  that  could  not 
be  removed  without  being  taken  doTv-n,  and  machinery;  and  the  measure  of 

fi56 


CHAP.   Xm.]  EJECTMENT.  *441 


VI.    Ejectment. 

At  common  law  this  action  does  not  lie  for  anything  whereon 
an  entry  can  not  be  made,  or  of  which  the  sheriff  can  not  deliver 
possession;  or,  in  other  words,  it  is  maintainable  only  for  cor- 
poreal hereditaments.^  But  at  the  common  law  where  the  owner 
of  land  recovers  it  in  ejectment,  the  improvements  and  fixtures 
thereon,  forming  a  parcel  of  the  land,  pass  by  virtue  of  such 
recovery  to  such  owner,  as  a  part  thereof ;  and  the  owner  of  the 
land  is  as  much  entitled  to  recover  the  fixtures  so  forming  part 
of  the  land,  as  he  is  the  corpus  of  the  estate  itself.^.    In  like 

damages  was  held  to  be  the  value  for  purposes  of  removal,  which  in  the 
case  of  the  chimney  was  the  value  of  the  material,  subject  to  the  obligation 
to  remove  it,  with  interest  thereon.  [Walker  v.  Schindel,  58  Md.,  360,  371 
(1882);  Seibel  v.  Siemon,  72  Mo.,  526  (1880);  Barff  v.  Probyn  (1895),  64 
L.  J.,  Q.  B.,  557,  560).] 

See,  also,  Hitchman  v.  Walton,  4  M.  &  W.,  409  (1838);  Cook  v.  Cham- 
plain  Transportation  Co.,  1  Den.,  102  (1845).  [Waller  v.  Bowling,  108 
N.  C,  289  (1891);  Seibel  v.  Siemon,  5  Mo.  App.,  303  (1878).  But  see 
Greenebaum  v.  Taylor,  102  Cal.,  624,  627  (1894).] 

[Under  the  Code,  §  3564,  the  measure  of  damages  in  trover  for  a  cotton 
screw  detached  from  the  plaintiff's  land  by  the  defendant,  and  affixed  to 
the  land  of  the  latter,  is  the  value  of  the  screw  with  a  reasonable  addition 
for  its  hire  or  use,  this  being  precisely  what  was  lost  by  the  wrongful 
conversion.     Woods  v.  McCall,  67  Ga.,  506,  507   (1881).] 

[Where  a  landlord  wrongfully  refuses  to  permit  the  removal  of  a  build- 
ing, the  measure  of  damages  is  its  worth  to  the  landlord,  being  the  sum 
it  enhances  the  value  of  the  lot,  and  not  what  the  value  of  the  building 
would  be  to  the  tenant.     Neiswanger  v.  Squier,  73  Mo.,   192,  199   (1880).] 

4  Adam's  Eject.,  18  et  seq;  Jackson  v.  Buel,  9  John.,  298  n812) ;  Black 
V.  Hepburne,  2  Yeates,  331  (1798) ;  Den.  ex  dem.  Farley  v.  Craig,  15  N.  J. 
Law,  191   (1836). 

5  McMinn  v.  Mayes,  4  Cal.,  209  (1854) ;  Blackw.  Tax  Titles.  *587.  [See, 
ante,  p.  *57.  Haggin  v.  Clark,  51  Cal.,  112,  116  (1875);  Anderson  v. 
Reid,  14  App.,  D.  C,  54  (1899);  Kanoii  v.  Kaioipahia,  11  TIaw.,  326,  327 
(1898);  Miles  v.  McNaughton.  Ill  Mich.,  350,  354  (1896);  Ege  v.  Killo, 
84  Pa.  St.,  333,  341  (1877);  Effinger  v.  TIall,  81  Va.,  94,  101  (1885);  see, 
also,  Doren  v.  Lupton,  154  Ind.,  396,  399  (1899);  Armstrong  v.  Oppen- 
heimer,   84   Tex.,   .365,   368    (1892).] 

[A  saw-mill  upon  a  mill-site,  attached  to  the  earth  in  the  usual  way, 
althorugh  separable  without  injury  to  either  the  land  or  the  mill,  is  realty 
for  the  purpose  of  determining  the  mcajie  profits  recoverable  in  ejectment 
from  a  trespasser  who  uses  the  mill  as  it  stands;  an<l  ho  rannot  insist 
upon  a  separate  valuation  of  the  site  and   the  mill,  although  the  mill   is 

42  657 


•442  THE   LAW   OF   FIXTURES.  [CHAP.    XIII. 

1*44*21  niaiinor  as  between  the  successful  plain*tift'  in  ejectment 
and  tlie  evicted  defendant,  the  crops  growing  nj)on  the  premises 
are  part  of  the  realty,  and  pass  with  the  land  when  possession 
thereof  is  delivered  by  the  sheriff  under  the  writ  of  habere 
facias   possessionem.*^     But   in   these   cases  the   improvements, 

not  montioncHi  in  the  declaration.  Morris  v.  Tinker,  60  Ga.,  466,  472 
(1878).] 

[Whore  the  unsuccessful  defendant  in  ejectment  had  bought  a  house 
upon  tho  land  as  personal  property  and  united  it  more  firmly  to  the  land, 
the  plaintiff  cannot,  while  insisting  upon  retaining  the  house  by  virtue 
of  lus  recovery  of  the  land,  escape  compensation  for  the  improvement  on 
the  ground  that  it  never  became  a  fixture.  Zweitusch  v.  Watkins,  61  Wis., 
615,  621    (1884).] 

[A  tenant  was  wrongfully  dispossessed  by  his  landlord,  who  leased  the 
premises  to  another  tenant,  the  latter  erecting  fixtures.  Upon  recovery  by 
the  first  tenant,  the  structures  erected  by  the  second  tenant  became  realty 
as  to  the  first  tenant,  and  subject  to  his  lease.  Wright  v.  Macdonell,  88 
Tex.,   140,   149    (1895).] 

[Improvements  erected  by  a  tenant,  although  removable  by  him  as 
against  the  landlord,  pass;  and  the  tenant  cannot  recover  their  value  from 
the  landlord  although  the  latter  has  set  off  their  value  in  reduction  of  the 
claim  for  mesne  profits.     Lanigan  v.  Kille,  97  Pa.  St.,  120,  127   (1881).] 

[A  heater  nowise  attached  to  the  realty  is  not  a  part  of  a  mill  which 
a  sheriff  is  directed  to  deliver  under  a  writ  of  possession  awarded  upon 
judgment  in  an  action  of  forcible  detainer.  Smith  v.  People,  99  111.,  445, 
448   (1881).] 

[As  to  structures  placed  upon  land  by  a  railroad  company,  see  Illinois 
Central  R.  R.  Co.  v.  LaBlanc,  74  Miss.,  650   (1897).] 

As  to  the  subject  of  compensation  for  improvements  made  by  hona  fide 
occupants,  under  the  various  ' '  betterment,  "  "  improvement, ' '  and  ' '  occu- 
pying claimant"  laws  of  the  various  States,  see  Blackw.  Tax  Titles,  *587, 
et  seq.,  and  notes. 

eAltee  v.  Hinckler,  36  111.,  275  (1864);  Adam's  Eject.  *347,  and  cases 
there  cited.  [See,  ante,  pp.  *64,  *261  and  *262.  Carlise  v.  Killebrew, 
89  Ala.,  329,  332  (1889)  ;  McGinnis  v.  Fernandes,  32  III.  App.,  424  (1889), 
aff'd  135  111.,  69  (1890);  Huston  v.  Skaggs,  7  Ky.  L.  E.,  592  (Super., 
1886)  ;  Oyster  v.  Oyster,  32  Mo.  App.,  270  (1888)  ;  see,  also,  Huerstal  v. 
Muir,  64  Cal.,  450,  453  (1884);  Adams  v.  Kauwa,  6  Hawaii,  280,  281 
(1881);  Hamilton  Loan  Co.  v.  Campbell,  5  Ont.,  371   (1884).] 

[Unsevered  crops  pass  w4th  land  recovered  in  ejectment,  if  no  rent  is 
claimed  for  the  year  in  which  recovery  is  had.  Craig  v.  Watson,  68  Ga., 
114,  116   (1881).] 

[The  successful  plaintiff  in  ejectment  does  not  recover  crops  planted  by 
a  lessee  before  the  action  was  commenced.  Collier  v.  Cunningham,  2  Ind. 
App.,  254,  262   (1891).] 

658 


CHAP.    Xm.]  EJECTMENT.  *442 

fixtures,  and  crops  pass  as  parcel  of  the  land  itself,  and  not  as 
things  distinct  therefrom;  and  the  action  is  believed  to  be  ap- 
plicable to  the  recovery  of  fixtures  only  as  incidental  to  the  re- 
covery of  the  possession  of  the  land  to  which  they  are  annexed, 
the  action  itself  being  calculated  to  try  the  mere  possessory  title 
to  real  estate,^  and  not  being  applicable  to  personal  chattels. 
But,  although  ejectment  does  not  lie  for  the  recovery  of  mere 
chattels,  though  in  a  state  of  annexation  with  the  realty,  where 
a  boiler,  engine  and  stack  were  erected  on  the  land  of  the  plain- 
tiff at  the  joint  expense  of  himself  and  the  defendant,  under 
an  agreement  rcognizing  their  joint  ownership   in  such  erec- 
tions and  that  they  should  be  used  as  a  common  source  of  power 
without  limitation  as  to  time,  it  was  held  that  the  interests 
thereby  created  were  in  the  nature  of  real  estate;  and  that  if 
one  of  the  tenants  in  common  excluded  the  other  from  the  use 
and  possession  thereof,  ejectment  would  lie  to  enforce  the  agree- 
ment.*    So,  ejectment  may  be  maintained  for  "a  house,"  "a 
chamber,"  "a  part  of  a  house,"  "the  vestry  in  D,"  "a  ware- 
house," "a  stable,"  "a  shop,"  "a  cottage,"  "four  corn-mills," 
without  saying  of  what  kind,  "a  store,"  etc.,  without  any  special 
reference  to  the  soil  beneath,  these  things  being  prima  facie 
realty.® 

7  3  Bl.  Com.,  201,  205. 

[Railroad  track  laid  by  a  railroad  company  without  proper  proceedings 
to  appropriate  the  land,  does  not  pass  to  the  successful  plaintiff  in  eject- 
ment, as  the  track  is  not  a  part  of  the  freehold.  Justice  v.  Nesquehoning 
R.  R.  Co.,  87  Pa.  St.,  28   (1878).] 

[The  word  "dwelling-house"  embraces  the  land  upon  which  it  stands, 
and  a  charge  of  its  forcible  detention  is  equivalent  to  a  charge  of  forcible 
detention  of  the  land  upon  which  it  is  standing.  Endsley  v.  State,  76 
Ind.,  467,  469    (1881).] 

Mlill  V.  Hill,  43  Pa.  St.,  521    (1862). 

See  PauU  v.  Eldred,  29  Pa.  St.,  415  (1857).  [Casscll  v.  Crothcrs,  193 
Pa.  St.,  3.59  (1899).] 

9  See,  generally.  Mills  v.  Pierce,  2  N.  II.,  9  (1819);  llili  v.  Giles,  Cro. 
Eliz.,  818  (1601);  Royston  v.  Eccloston,  Cro.  Jac,  6.54  (1623);  Hammond 
V.  Ireland,  Sty.,  215  (1649);  Lady  Dacre's  Case,  1  Lev.,  .58  (1673):  Fitz- 
gerald V.  Marshall,  1  Mod.,  90  (1683);  Anon.,  3  Loon.,  210  (1588);  White 
V.  White,  16  N.  J.  Law,  202  (1837);  King  v.  Catlin,  1  Tyler,  .355  (1802); 
Jackson  v.  May,  16  .John.,  184  (1819)  ;  Adam's  Eject.,  26;  and  the  authori- 
ties therein  cited.  (Gilliam  v.  Bird,  30  N.  C,  280,  284  (18^8);  soo,  also, 
Lange  v.   Baranco,   32   La.   Ann.,  697.  699    (1880);    Dean   v.    Pynchoon,   3 

059 


*443  THE    LAW    OF    FIXTURES.  [CIIAP.    XIII. 


[••4-i3J  *VII.    Actions  Ex  Contractu. 

INIany  of  the  cases  that  iiiifrlit  properly  l)e  referred  to  in  this 
connection  have  already  been  cited  in  the  precedinf?  pages  of 
this  volnnie  in  considering  the  right  of  the  tenant  to  remove 
fixtures  as  affected  by  the  terms  of  his  tenancy,  and  other  rela- 
tions, where  the  general  rules  of  law  relating  to  fixtures  have 
been  qualified,  restricted  or  enlarged  by  agreements  upon  the 
subject  entered  into  by  the  parties  in  interest.^"  There  are, 
however,  some  other  cases  that  will  be  referred  to  in  this  con- 
nection. 

Where  a  tenant  represents  that  he  is  the  owner  of  and  sells 
to  a  sub-tenant  as  personal  property,  fixtures  upon  the  demised 
premises,  which  by  the  term  of  his  original  lease  are  to  be  a  part 
of  the  freehold  and  belong  to  the  landlord,  and  to  which  he  has 
no  title  except  the  right  to  their  use,  as  tenant,  the  purchaser 
may  recover  damages  for  the  failure  of  the  vendor's  title,  and 
the  subsequent  destruction  of  the  demised  property  by  a  third 
party  or  the  forfeiture  of  the  lease  to  the  original  lessor  will  not 
relieve  the  defendant  from  such  liability.^  ^ 

Chand.,  9,  19  (Wis.,  1850).  See  Asheville  Div.  S.  0.  T.  v.  Ashton,  92  N.  C, 
578,  587  (1885),  that  a  third  or  upper  story  of  a  large  brick  building  can  be 
recovered  in  ejectment.] 

[The  road  bed  and  everything  attached  to  the  soil  upon  which  a  railroad 
is  built,  are  realty,  for  which  ejectment  will  lie.  Tennessee  &  Coosa 
E.  E.  Co.  V,  East  Alabama  K'y  Co.,  75  Ala.,  516,  525   (1883).] 

In  a  suit  to  recover  possession  of  premises,  defendant 's  answer  admitted 
plaintiff's  ownership  of  the  lot  and  title  to  the  possession,  but  alleged  that 
defendant  was  owner  of  a  building  standing  on  the  premises  and  held  and 
occupied  it  by  possession  and  license  of  plaintiff 's  grantor,  and  that  plain- 
tiff purchased  with  full  knowledge  of  defendant 's  right  to  the  house,  and 
claimed  to  hold  the  premises  as  tenant  at  will  and  the  right  to  remove  the 
house  before  delivering  possession  of  the  lot: — Held,  on  demurrer,  to  be 
no  answer  to  the  action  for  possession.  Goodman  v.  Hannibal  &  St.  Jo. 
E.  E.  Co.,  45  Mo.,  33   (1869). 

10  See,  ante,  pp.  *66,  *149. 

11  Beckmann  v.  Bprmann,  3  E.  D.  Smith,  409  (1854).  [See  Dryden  v. 
Kellogg,   2  Mo.  App.,  87   (1876).] 

[Where  a  lot  with  the  buildings  thereon  is  granted  with  warranty, 
a  removal  of  the  house  by  a  tenant  under  a  prior  agreement  with  the 
grantor,  is  a  breach  of  the  covenant  of  warranty.  West  v.  Stewart,  7 
Pa.  St.,  122   (1847).     See,  Atkinson  v.  Noad,  14  Low.  Can.,  159  (1863).] 

660 


CHAP.   XIII.]  ACTIONS  EX   CONTRACTU.  *444 

Wliere  a  lease  contained  on  the  part  of  the  lessee  an  express 
covenant  to  pay  the  rent,  not  to  assign  without  the  lessor's 
consent,  and  also  at  the  expiration  of  the  lease  to  surrender 
*up  the  possession  of  the  premises  in  the  same  condition  [*444] 
in  which  they  then  were,  natural  wear  and  tear  excepted;  and 
the  buildings  were  destroyed  by  fire,  but  certain  fixtures  attached 
to  and  constituting  a  part  of  the  demised  premises  were  severed 
by  the  fire  and  were  subsequently  removed  by  the  lessee  and  not 
returned,  it  was  held,  that  the  fixtures  not  losing  their  identity, 
but  remaining  a  portion  of  that  covered  by  the  lease,  were 
fairly  within  the  agreement  to  surrender  at  the  end  of  the  term, 
and  that  the  lessor  might  recover  their  value  in  an  action  on  the 
covenant,  and  was  not  driven  to  his  action  of  trover.^^ 

Where  fixtures  have  been  wrongfully  severed,  removed  and 

[A  contract  for  the  sale  of  a  store  was  made,  the  vendor  falsely  repre- 
senting that  all  of  the  fixtures  belonged  to  him.  A  tenant,  having  removed 
the  fixtures,  the  vendee  refused  to  perform  the  contract,  and  suit  was 
brought.  Held,  that,  although  specific  performance  might  have  been  de- 
creed in  equity,  compensation  being  given  for  the  removal  of  the  fixtures, 
the  vendor  could  not  recover  damages  without  performance  upon  his  part, 
as.  the  vendee  was  entitled  to  the  store  in  the  condition  in  which  it  was 
when  bargained  for.     Smyth  v.  Sturges,  108  N.  Y.,  495,  503  (1888).] 

[See  Cameron  v.  Tarrett,  1  Up.  Can.,  Q.  B.,  312,  where  a  prior  tenant 
took  away  fixtures  of  which  his  successor  expected  to  have  the  use.] 

12  Warner  v.  Hitchins,  5  Barb.,  666   (1849). 

In  an  action  upon  a  covenant  in  a  lease  to  repair  and  keep  the  demised 
premises  in  tcnantable  order  and  repair  and  at  the  end  of  the  term  to  yield 
them  up  in  such  tenantable  repair,  the  breach  assigned  was  that  defendant 
"did  not  nor  would  sufficiently  support,  repair  and  keep  the  said  messuage, 
etc.,  in  tenantable  order  or  repair,  nor  yield  up  the  same  in  such  tonantalile 
repair  at  the  end  of  said  term,  but  on  the  contrary  thereof  suffered  and 
permitted  the  said  messuages,  etc.,  to  be  and  contiiuie  and  the  same  were 
during  all  that  time  ruinous,  etc.,  and  the  defendant  at  the  end  of  the 
said  term  left  the  promises  so  out  of  repair  as  aforesaid."  Held,  that 
though  if  nothing  liad  boon  stated  except  merely  to  negative  i)crformanco 
of  the  covenant  in  its  terms  and  issue  had  been  taken  thereon  it  would 
have  been  taken  to  be  a  breach  to  the  full  extent  of  the  covenant,  yet  the 
words,  "on  the  contrary,  suffered  and  permitted"  the  jiremiscs  to  be  out 
of  rc[)air,  makes  the  allegation  specific,  and  tliereforo  lessor  couhl  not 
recover  for  vdluntary  waste  as  by  rcmdving  windows,  and  window-frames, 
etc.      Edge  v.   Pemberton,   12   M.  &  W.,   187    (1843). 

And  on  the  other  hand  a  charge  of  voluntary  waste  is  not  Hiii)port(«d  by 
proof  of  permissive  waste.     Martin  v.  (!illham,  7  Ad.  &  E.,  Mi)   (1837). 

6G1 


•445  THE   LAW   OP   FIXTURES.  [CUAP.   XIU. 

converted  into  money  by  the  wrong-doer,  the  party  entitled  to 
the  fixtures  after  such  severance  may  waive  the  tort  and  recover 
in  assumpsit  upon  the  count  for  money  had  and  received;  and 
there  are  many  cases  holding  that  if  the  defendant  has  by 
means  of  a  tort  obtained  even  money's  worth,  assumpsit  may 
be  maintainod.^-'^  But  assumpsit  for  money  had  and  received 
does  not  lie  for  the  price  of  sand  taken  from  a  sand-bar  and 
[*445]  *sold  by  defendant,  to  which  sand-bar,  both  plaintiff  and 
defendant  claim  title,  this  action  not  being  applicable  to  the  trial 
of  title  to  land.i^ 

As  respects  the  pleadings  in  actions  upon  contracts  relating 
to  fixtures,  there  have  been  some  decisions  that  may  properly  be 
referred  to  at  this  place.  Thus,  it  is  well  settled  that,  fixtures 
being  while  in  a  state  of  annexation  a  part  of  the  freehold,  the 
price  thereof  when  sold  in  that  condition,  cannot  be  recovered 

13  See  a  learned  discussion  by  Hon.  T.  M.  Cooley,  of  the  right  to  waive 
a  tort  and  sue  in  assumpsit,  in  the  Bench  and  Bar  for  January,  1871,  vol. 
2,  page  218,  where  the  authorities  on  the  subject  are  fully  collected. 

[It  is  not  necessary  that  the  fixture  should  be  converted  into  money. 
Assumpsit  may  be  brought  if  the  trespasser  does  not  retain  it  in  its  origi- 
nal shape,  as  where  trees  are  changed  into  lumber.  Evans  v.  Miller,  58 
Miss.,   120,  125   (1880).] 

[A  party  can  always  waive  the  trespass  and  sue  for  the  value  of  the 
property  taken,  in  this  case  stone  from  a  quarry,  and  a  fence,  and  the 
law  will  imply  a  promise  to  pay.  Hagaman  v.  Neitzel,  15  Kan.,  383,  389 
(1875).] 

[A  remainderman  or  reversioner  can  bring  assumpsit  for  money  had  and 
received  when  the  life  tenant  unlawfully  severs  a  part  of  the  realty. 
Williamson  v.  Jones,  43  W,  Va.,  562,  569  (1897).] 

[A  tort  cannot  be  waived  unless  the  trespass  is  willful,  or  the  trespasser 
has  benefited  therefrom,  or  he  has  promised  to  pay.  Where  crops  are 
destroyed  by  the  cattle  of  another,  without  his  participation  in  the  tres- 
pass, the  remedy  is  by  an  action  ex  delicto.  Tightmeyer  v.  Mongold,  20 
Kan.,  90   (1878).] 

[A  tenant  cannot  waive  a  tort  and  recover  in  assumpsit  for  fixtures 
attached  to  the  premises  surrendered  by  him,  as  they  are  a  part  of  the 
realty.     Donnelly  v.  Thieben,  9  111.  App.,  495,  500   (1881).] 

[See,  further,  upon  the  subject  of  waiving  a  tort.  Brown  v.  Magorty, 
156  Mass.,  209  (1892);  Mhoon  v.  Greenfield,  52  Miss.,  43^  (1896);  Wall 
v.  Williams,  91  N.  C,  477,  481  (1884);  Duren  v.  Strait,  16  S.  C,  465, 
466    (1881).] 

1*  Baker  v.  Howell,  6  S.  &  E.,  476  (1821).    See  ante,  Replevin  and  Trover. 

662 


CHAP.    XIU.]  ACTIONS   EX    CONTRACTU.  •    *445 

under  a  declaration  in  assumpsit  for  goods  sold  and  delivered.^  ^ 
But,  although  in  such  a  case  there  can  be  no  recovery  imder 
the  count  for  goods  sold  and  delivered,  where  the  defendant  has 
entered  into  possession  of  premises  to  which  the  fixtures  are 
attached  and  has  agreed  to  the  amount  of  the  valuation  of  the 
fixtures,  a  recovery  may  be  had  under  a  count  upon  an  account 
stated.^  ^ 

In  Hallen  v.  Runder,^'^  two  or  three  days  before  the  expira- 
tion of  the  lease  of  a  house,  the  landlord  agreed  with  the  tenant 
to  take  his  fixtures  at  a  valuation.  The  lease  expired  and  the 
tenant  having  quitted  possession  without  severing  the  fixtures 

"Lee  V.  Risdon,  7  Taunt.,  188  (1816);  Nutt  v.  Butler,  5  Esp.,  176 
(1804).  See,  also,  Clark  v.  Bulmer,  11  M.  &  W.,  243  (1843);  Salmon  v. 
Watson,  4  Moore,  73  (1819);  Sleddon  v.  Cruikshank,  16  M.  &  W.,  72 
(1846),  per  Parke,  B.;  Knowles  v.  Michel,  13  East,  249  (1810);  Steams 
V.  Washburn,  7  Gray,  187   (1856).     [See,  ante,  p.  *77.] 

[Where  grates  were  placed  in  a  house,  for  which  the  buyer  refused  to 
pay,  and  ordered  the  seller  to  take  them  out,  and,  when  sued  in  assumpsit, 
successfully  defended  by  showing  a  breach  of  warranty,  such  action  is  no 
bar  to  a  subsequent  action  in  assumpsit  by  the  seller  for  a  refusal  of  the 
buyer  to  allow  the  removal  of  the  grates  on  the  ground  that  they  had  be- 
come a  part  of  the  realty.  The  order  to  take  them  out  showed  an  inten- 
tion not  to  make  them  fixtures,  and  assumpsit  lies  for  their  price.  Aldine 
Mfg.  Co.  V.  Barnard,  84  Mich.,  632   (1891).] 

18  Salmon  v.  Watson,  4  Moore,  73  (1819).  See,  also,  Knowles  v.  Michel, 
13  East,  249   (1810). 

n  3  Tyrwh.,  959  (1834),  s.  c,  1  Cr.  M.  &  R.,  266;  3  L.  J.  (N.  S.),  Exch., 
260. 

[Without  actual  severance  of  fixtures  from  the  realty,  before  surrender 
of  possession,  or  some  arrangement  with  the  landlord  by  which  the  right 
of  removal  was  continued  thereafter,  a  tenant  cannot  recover  the  value  of 
such  fixtures  in  an  action  of  assumpsit  for  goods  sold  and  delivered. 
Donnelly  v.  Thieben,  9  III.  App.,  495,  501  (1881).] 

See,  also,  Keyser  v.  District  No.  8  in  Sunapee,  35  N.  H.,  477  (1857), 
where  it  was  held  that  if  the  owner  of  a  building  standing  on  the  land  of 
another  by  his  license  and  hence  personal  property,  sell  it  for  an  agreed 
price,  and  the  purchaser  takes  possession  and  holds  the  building  under  the 
sale,  the  seller  may  recover  the  price  in  general  indcbitattis  assumpsit  for 
goods  sold  and  delivered. 

[A  lessee  having  erected  improvements  with  the  right  of  removal,  and 
his  ownership  of  such  improvements  being  undisputed,  sold  same  to  his 
successor  as  tenant;  but,  after  taking  poHHession,  the  j)urrhas(T  ri'fused 
payment,  whereupon  tlie  former  tenant  resold  them,  an<l  brought  an 
action  to  recover  rent  for  the  use  of  such  property  from  the  tenant  sue- 

663 


•446  THE   L.\.W   OF  FIXTURES.  [CHAP,   XIU. 

sent  the  key  to  the  hmdlord.  A  broker  appointed  by  the  land- 
lord afterwards  appraised  the  fixtures  at  more  than  £10.  In  an 
action  broujrht  by  the  tenant  to  recover  for  the  fixtures,  it  was 
held,  that,  though  the  tenant  could  not  recover  the  price  of  the 
fixtures  as  for  goods  sold  and  delivered,  yet  the  contract  being 
executed  and  the  plaintiff  having  given  up  possession  to  the 
[*44G]  *defendant,  he  might  recover  therefor  upon  a  count  in 
indebitatus  assumpsit  "for  fixtures  bargained  and  sold,  and  for 
fixtures  sold  and  delivered."  The  real  nature  of  the  contract 
between  the  plaintiff  and  defendant  in  that  case  was,  as  observed 
by  Parke,  B.,  that  the  plaintiff  should  waive  his  right  of  removal, 
and  thereby  give  up  to  the  defendant  all  his  interest  in  and 
right  to  enjoy  these  effects  as  chattels.  And,  although  the  terms 
used  might  not  be  the  most  accurate  mode  of  describing  the 
real  contract  between  the  parties,  they  were  regarded  as  suffi- 
cient ;  and  the  case  was  alleged  to  bear  a  strong  analogy  to  that 
of  a  contract  by  a  tenant  to  give  up  to  his  landlord  or  successor 
those  growing  crops  to  which  he  was  entitled  by  the  common  law 
or  custom  of  the  country,  the  value  of  which  after  the  contract 
was  executed  might  certainly  be  recovered  on  a  count  for  crops 
bargained  and  sold.^^ 

There  are,  however,  cases  where  a  general  form  of  pleading 
in  actions  upon  contracts  relating  to  fixtures  has  been  held  in- 
sufficient. Thus,  where  by  a  written  agreement  between  the 
parties,  the  defendant  was  to  purchase  of  the  plaintiff  a  lease 
of  a  farm  for  5001,  and  was  to  take  the  fixtures  and  crops  at  a 
valuation,  and  having  paid  a  deposit  of  twenty  per  cent,  vipon 
the  purchase  money,  he  was  let  into  possession,  and  the  fixtures 
and  crops  valued  to  him  at  l,200i,  but  a  good  title  not  being 
made  the  lease  was  not  assigned,  and  he  refused  to  pay  the 

ceeding  him.  Held,  that,  as  such  improvements  were  personal  property, 
he  eoulfl  not  recover  rent,  but  might  have  brought  an  action  for  damages. 
Had  the  improvements  been  leased,  the  succeeding  tenant  might  have  been 
estopped  from  invoking  rules  applicable  to  sales  of  personalty.  Denver 
Transfer  &  Warehouse  Co.  v.  Swem,  8  Colo.,  Ill,  113   (1884).] 

18  See  Mayfield  v.  Wadsley,  3  B.  &  C,  357  (1824) ;  5  D.  &  R.,  224. 

The  price  of  grain  growing  on  the  land  of  the  vendor  cannot  be  recovered 
under  the  common  counts  for  goods  bargained  and  sold  or  goods  sold  and 
delivered.  Stearns  v.  Washburn,  7  Gray,  187  (1856).  See,  also,  Knowles 
V.  aiichel,  13  East,  249  (1810). 

664 


CHAP.   XIII.]  ACTIONS  EX   CONTRACTU.  *447 

amount  of  the  valuation  or  the  remainder  of  the  purchase 
money,  it  was  held  that  an  action  of  indehitatus  assumpsit 
would  not  lie  for  the  price  of  the  fixtures  and  crops,  and  that 
the  agreement  being  entire  should  have  been  specially  declared 
upon.^^  So,  in  an  action  of  indebitatus  assumpsit  for  the  sum 
of  3,000i,  "for  the  price  and  value  of  a  main  engine  and  other 
goods  sold  and  delivered,  on  the  trial  it  was  proved  that  the 
*contract  was  to  build  an  engine  of  one  hundred  horse  [*447] 
power  for  the  sum  of  2,500^,  to  be  completed  and  fixed  at  a 
specified  time ;  that  the  different  parts  were  constructed  at  plain- 
tiff's  manufactory  and  sent  at  different  intervals  to  defendant's 
colliery,  twenty  miles  distant,  where  they  were  fixed  piece-meal 
and  so  made  into  an  engine,  and  upon  these  facts  it  was  held, 
that  the  price  was  not  recoverable  in  this  form  of  action,  the 
proper  form  of  action  being,  as  it  seems,  either  indebitatus 
assumpsit  for  work,  labor  and  materials,  or  for  erecting  and 
constructing  an  engine.^'^  Where  a  written  agreement  provides 
for  the  letting  of  apartments  ' '  at  the  sum  of  seventy-five  guineas 

"Neal  V.  Viney,  1  Camp.  N.  P.,  471  (1808).  See,  also,  Sleddon  v. 
Cruikshank,   16  M.  &  W.,  71    (1846). 

[One  who  has  erected  buildings  under  tho  expectation  of  receiving  title 
to  the  land,  which  is  not  realized,  cannot  maintain  assumpsit  for  their 
value  as  long  as  he  has  not  been  dispossessed.  Naftzinger  v.  Roth,  93  Pa. 
St.,  443,  448   (1880).] 

20  Clark  v.  Bulmer,  11  M.  &  W.,  243  (1843).  See,  also,  Cottrell  v, 
Apsey,  6  Taunt.,  322  (1815)  ;  Pinner  v.  Arnold,  2  Cr.  M.  &  R.,  613  (1835) ; 
also  Tripp  v.  Armitage,  and  other  cases  cited  ante,  p.  *7,  note. 

Where  a  tenant  of  a  hotel  laid  down  tiles  in  cement  in  an  entry  of  the 
house  under  a  written  agreement,  entered  into  subsequent  to  tho  lease  as 
to  their  removal,  that  at  the  expiration  of  tho  said  lease  he  would  take  up 
and  remove  said  tile  or  flagging  at  his  own  expense,  and  clean  tlic  mortar 
or  cement  from  tho  flooring  and  leave  it  in  good  order  for  laying  a  floor 
of  boards,  unless  the  landlord  should  elect  to  have  them  remain  and  pay 
therefor  a  specified  sum;  and  the  tenant  ofl"t'roil  thorn  to  tho  landlonl  for 
said  sum,  who  gave  no  decided  answer,  whereupon  tho  tenant  removed 
them,  leaving  tho  cement  adhering  to  tho  floor  and  breaking  many  of  them 
in  the  removal.  Held,  that  lessor's  remedy  must  be  sought  by  action  on  the 
spefial  agreement  and  not  on  the  covenant  in  the  lease  against  waste. 
Wall  V.  Hinds,  4  Gray,  256   (1855). 

[Where  a  tenant  in  writing  agreed  to  leave  gas  fittings  in  a  shop,  which 
he  did  not  do,  the  landlord's  right  of  action  would  bo  aHH\impsit  on  tho 
agreement,  not  trover  on  the  property,  nniin  v.  Garrett,  7  N.  Hrunsw., 
218,  222    (1851).] 

665 


•447  THE  LiVW   OF  FIXTURES.  [CIIAP.    XIII. 

per  annum;  fixtures  as  follows  (enumerating  them);  the  rent 
to  commence  at  the  time  possession  is  taken;"  in  an  action  of 
assumpsit  thereon  for  not  permitting  the  plaintiff  to  take  pos- 
session and  have  the  use  of  the  premises,  it  is  no  objection  to  the' 
declaration  that  it  does  not  state  the  agreement  to  have  been 
for  letting  the  apartments  and  fixtures;  and  the  omission  from 
the  declaration  of  that  part  of  the  agreement  relating  to  the 
fixtures  is  no  variance.  All  that  the  plaintiff  complains  of  in 
such  action  is  the  defendant's  refusal  to  give  him  possession  of 
the  apartments,  which  is  the  whole  gravamen  of  the  action,  the 
fixtures  having  nothing  to  do  with  the  declaration.^^ 

21  Ward  V.  Smith,  11  Price,  19  (1822).  For  a  further  consideration  of 
the  subject  of  pleading,  etc.,  the  reader  is  referred  to  the  professed  treatises 
on  that  subject. 

As  to  the  measure  of  damages  in  an  action  by  the  lessor  for  breach  of 
covenant  to  deliver  up  the  demised  premises  and  all  fixtures  therein,  in  a 
case  where  the  mortgagee  of  the  premises  and  fixtures  demanded  possession 
thereof  of  the  lessee  under  his  mortgage,  see  Watson  v.  Lane,  11  Exch., 
769  (1856).  [Watriss  v.  First  Nat.  Bank,  130  Mass.,  343  (1879);  see, 
also,  Scott  v.  Haverstraw  Brick  Co.,  16  N.  Y.  Supp.,  670,  672  (1891),  aff'd 
135  N.  Y.,  141,  149   (1892).] 

[Where  a  landlord  prevents  a  tenant  from  removing  marble  mantels 
and  grates  which,  under  a  covenant  in  the  lease,  the  tenant  had  a  right 
to  r-emove,  the  measure  of  damages  is  their  value  as  they  stand  in  the  build- 
ing.   Bruce  v.  Welch,  59  Supr.  Ct.  (52  Hun),  524  (N.  Y.,  1S89).] 


666 


CHAPTER  XIV.  [*449] 

CRIMINAL  LAW,  AS  RELATED  TO  FIXTURES.— 

DEODANDS. 

I.    Larceny. 

Larceny  is  defined  to  be  the  felonious  taking  and  carrying 
away  of  the  personal  goods  of  another ;  ^  and  if  the  things 
taken  are  things  real,  or  savour  of  the  realty,  larceny  at  the  com- 
mon law  cannot  be  committed  of  them.^  As  we  have  already 
seen,  fixtures  are,  during  the  time  they  are  annexed,  consid- 
ered as  partaking  of  the  nature  of  the  realty,  and  hence  it  has 
almost  universally  been  held,  that  they  are  not  when  severed 
and  carried  away  by  one  continuous  transaction  the  subjects  of 
larceny  at  common  law.^     This  subject  is  thus  explained  by 

1  4  Bl.  Com.,  229.  See  Bract.,  lib.  3,  ch.  32.  [See  Meerschat  v.  State, 
57  S.  W.,  955,  956   (Tex.  Crim.  App.,  1900).] 

2  4  Bl.  Com.,  232.     See  next  note. 

3  State  V,  Hall,  5  Harr.,  492  (1854),  and  State  v.  Davis,  22  La.  Ann.,  77 
(1870),  copper  pipes  part  of  a  steam-engine  attached  to  a  manufacturing 
establishment;  U.  S.  v.  Wagner,  1  Cranch  C.  C,  314  (1806);  and  U.  S.  v. 
Smith,  1  Cranch  C.  C,  475  (1807),  rails  in  a  fence;  Eegina  v.  Rice,  28  L. 
J.,  M.  C,  64  (1859) ;  s.  c,  Bell's  C.  C,  87;  5  Jur.  (N.  S.),  273;  7.  W.  R., 
232;  32  L.  T.,  323;  8  Cox  C.  C,  119,  lead  gutters  of  brick,  timber  and 
tile-made  sheds  on  a  wharf  fixed  to  the  soil;  Lee  v.  Risdon,  7  Taunt.,  190 
(1816),  per  Gihbs,  C.  J.;  Aloyn,  31,  32;  Sty.,  66,  73,  dung  spread  upon 
the  land  not  the  subject  of  larceny;  Ex  parte  Reynal,  2  Mont,  Dea.  &  DeG., 
443,  461  (1841).  See,  also.  Rex  v.  Millar,  7  C.  &  P.,  665  (1837)  ;  2  East's 
P.  C,  587.  [Bell  v.  State,  51  Tenn.,  426  (1874);  see,  also.  State  v. 
Graves,  74  N.  C,  396   (1876). J 

[A  copper  plate  nailed  to  a  ripplc-tablc,  the  latter  being  a  part  of  the 
freehold,  is  not  the  subject  of  larceny.  Rex  v.  Dowsey,  29  Vict.  L.  R., 
453  (1903);  nor  are  valves  screwed  to  iron  pipes  attacliod  to  a  building 
by  staples  and  necessary  for  a  factory,  Langston  v.  State,  96  Ala.,  44 
(1891).] 

["Almon  "Wing  stole  windows  from  Benjamin  .Jordan's  house"  do  not 
impute  the  crime  of  larceny,  as  windows  arc,  strictly,  a  part  of  a  house. 
Wing  v.  Wing,  66  Me.,  62,  63  (1876).] 

667 


•450  THE  LAW   OF  FIXTURES.  [CHAP.   XIV. 

[*450]  *Sir  William  Blackstoue  in  his  learned  Comnieutaries : ' 
"Lands,  tenements,  and  hereditaments  (either  corporeal  or  in- 
corporeal), cannot  in  their  nature  be  taken  and  carried  away. 
And  of  thing:s  likewise  that  adhere  to  the  freehold,  as  corn, 
grass,  trees,2  and  the  like,  or  lead  upon  a  house,  no  larceny  could 

A  commission  (pursuant  'to  an  order  previously  made  in  chancery)  to 
settle  the  boundaries  of  a  manor,  and  the  return  thereto,  are  instruments 
concerning  the  realty,  and  not  the  subject  of  larceny.  Eex  v.  Webster,  1 
Leach  C.  C,  14  (1739).  See,  also,  2  Russ.  on  Crimes,  70.  [See,  ante,  p. 
*230,  charters.] 

That  wild  bees  are  not  the  subject  of  larcency  while  remaining  in  the 
tree  where  they  have  hived,  see  Wallis  v.  Mease,  3  Binn.,  546   (1811). 

But  oysters  planted  in  public  waters,  if  not  planted  where  oysters  grow 
naturally,  and  if  the  spot  is  designated  by  stakes  or  otherwise  so  that  they 
can  be  readily  distinguished  from  others  in  the  same  waters,  are  the  sub- 
ject of  larceny.  State  v.  Taylor,  27  N.  J.  Law,  117  (1858).  See,  also, 
Eeg.  V.  Downing,  23  L.  T.  (N.  S.),  398  (1870).  [People  v.  Wanzer,  88 
N.  Y.  Supp.,  281   (1904).] 

[A  person  cannot  be  indicted  for  taking  oysters  from  a  bed  between 
high-water  and  low-water  mark.     Johnson  v.  State,  114  Ga.,  790   (1901).] 

Drifted  and  ungathered  sea-weed  cast  on  the  shore  (between  high  and 
low  water-mark)  of  him  who  has  the  exclusive  ownership  of  said  shore,  is 
held  not  to  be  the  subject  of  larceny.  Eeg.  v.  Clinten,  Ir.  R.,  4  Com.  Law, 
6   (1869). 

1  4  BI.  Com.,  232. 

2Paulin  V.  Forde,  March,  211  (1642);  Emmerson  v.  Annison,  1  Mod., 
89  (1684);  s.  c,  2  Keb.,  874;  1  Vent.,  187;  Comfort  v.  Fulton,  39  Barb., 
56  (1861);  s.  C,  13  Abb.  Pr.,  376;  [Johnson  v.  State,  100  Ala.,  55,  57 
(1893);  McCall  v.  State,  69  Ala.,  227,  228  (1881);  Bonham  v.  State, 
65  Ala.,  456,  458  (1880);  Holly  v.  State,  54  Ala.,  238,  239  (1875);  State 
V.  Thompson,  93  N.  C,  537,  538  (1885);  State  v.  Foy,  82  N.  C,  679,  680 
(1880).] 

[An  indictment  which  charges  that  the  defendant  carried  away  "corn,  a 
part  of  an  outstanding  crop,"  and  describing  it  as  "personal  property," 
is  defective,  being  contradictory,  inconsistent  and  uncertain,  and  does  not 
justify  a  verdict  against  the  defendant.  Smithcrman  v.  State,  63  Ala.,  24, 
26   (1879);  Pinckard  v.  State,  62  Ala.,  167  (1878).] 

Growing  trees  cannot  be  called  bona  et  catalla.  So  held  in  an  indict- 
ment for  riotously  entering  a  close  and  cutting  down,  etc.,  twenty  ashes, 
etc.,  ibidem  crescentes,  de  boim  et  catallis  of  J.  S.,  etc.  Eeg.  v.  Harris,  11 
Mod.,  113,  121   (1707);  s.  C,  Holt,  353. 

Stealing  growing  crops  is  made  larceny  by  statute  in  some  States.  State 
V.  Cherry,  72  N.  C,  123  (1875)  ;  State  v.  Stephenson,  2  Bail.,  334  (1831); 
Comfort  V.  Fulton  {supra)  •  3  E.  S.,  N.  Y.  (5  ed.),  959,  §  70;  971,  §  1;  973, 
§  15,  div.  4;  4  Bl.  Com.,  233,  2  East's  P.  C,  587;  Eev.  Stat.  111.  (1874),  p. 

668 


CHAP.    XIV.]  LARCENY,  ETC.  *451 

be  committed  by  the  rules  of  the  common  law,  but  the  severance  ^"^ 
of  them  was,  and  in  many  things  is  still  merely  a  trespass,  which 
depended  on  a  subtilty  in  the  legal  notions  of  our  ancestors. 
These  things  were  parcel  of  the  real  estate,  and  therefore,  while 
they  continued  so,  could  not  by  any  possibility  be  the  subject  of 
theft,  being  absolutely  fixed  and  immovable.  And  if  they  were 
severed  by  violence,  so  as  to  be  changed  into  movables,  and  at  the 
same  time  by  one  and  the  same  continued  act  carried  off  by  the 
person  who  severed  them,  they  could  never  be  said  to  be  taken 
from  the  proprietor  in  this  their  newly-acquired  state  of  mobility 
(which  is  essential  to  the  nature  of  larceny),  being  never  as 
such  in  the  actual  or  constructive  possession  of  any  one  but  of 
him  who  committed  the  *trespass.3  He  could  not  in  [*451] 
strictness  be  said  to  have  taken  what  at  that  time  were  the  per- 
sonal goods  of  another,  since  the  very  act  of  taking  was  what 
turned  them  into  personal  goods.  But  if  the  thief  severs  them 
at  one  time,  whereby  the  trespass  is  completed,  and  they  are 
converted  into  personal  chattels  in  the  constructive  possession 
of  him  on  whose  soil  they  are  left  or  laid,  and  come  again  at 
another  time,  when  they  are  so  turned  into  personalty,  and 
takes  them  away,  it  is  larceny ;  and  so  it  is  if  the  owner  or  any 
else  has  severed  them. ' '  ^ 

"While  the  rule  as  above  stated  may  be  regarded  as  a  settled 
rule  of  the  common  law,  there  appears  to  be  a  tendency  on  the 
part  of  the  courts  in  this  country  (where  the  subject  has  not 
been  regulated  by  statute)  to  restrict  its  application  within 
somewhat  more  narrow  limits,  than  it  has  hitherto  been  sup- 

378,  §§  173,  175.    See,  also,  Bartlett  v.  Brown,  6  E.  I.,  37  (1S59).     [Gregg 
V.  State,  55  Ala.,  116,  117    (1876).] 

[Under  §§  4407,  22:20  of  the  Code,  a  person  detaching  ears  of  corn  and 
taking  them  from  tho  field  is  guilty  of  larceny,  as  they  become  personalty 
as  soon  as  detached.     Beall  v.  State,  68  Ga.,  820,  821   (1882).  | 

But  turpentine  which  has  run  out  of  the  trees  into  excavations  called 
"boxes"  made  in  the  bodies  of  the  trees  for  the  purpose  of  receiving  it.  is 
personalty,  and  the  subject  of  larceny.  State  v.  Moore,  11  Ired.,  70  (1950). 
[State  V.  King,  98  N.  C,  648,  650  (1887).] 

3  See,  however,  Ex  parte  Willke,  34  Tex.,  155  (1871).  [See  Farris  v. 
State,   69  S.   W.,   110    (Tex.   Crim.   App.,   1902).] 

♦  3  Inst.,  109,  1  Ilal.  P.  C,  510;  Kmmerson  v.  Annison  («//>r«).  [State 
V.  Parker,  34  Ark.,  158,  160  (1879);  State  v.  Prince,  42  La.  Ann.,  817, 
823  (1890);  Kegina  v.  Foley  (1889),  17  Cox  Crim.,  142.] 

669 


•452  THE  LAW   OF  FIXTURES.  [CHAP.   XIV. 

posed  to  include.'^  And  the  rule  of  the  common  law  that  things 
savoring  of  the  realty  are  not  the  snbject  of  larceny,  has  been 
considered  to  apply  only  to  things  issning  ont  of  or  growing 
upon  the  land  and  such  as  "adhere"  to  the  freehold,  but  not  to 
personal  chattels  which  are  constructively  annexed  thereto,  and 
it  has  accordingly  been  held  that  a  leather  belt  connecting  cer- 
tain wheels  in  a  saw-mill,  necessary  to  its  propulsion,  but  re- 
movable without  injury  by  untying  thongs  holding  the  ends 
together,  is  a  subject  of  larceny.^  It  has  likewise  been  held  that 
a  key,  though  in  the  lock  of  a  door  in  a  house,  is  the  subject  of 
larceny;  and  that  words  charging  a  person  with  stealing  it  are 
actionableJ 

The  defects  of  the  common  law  in  respect  to  crimes  against 
fixtures,  growing  crops,  etc.,  have  to  some  extent  been  rem- 
[*452]  *edied  by  statutes  both  in  England  and  the  United 
States,  making  the  stealing  of  such  things  larceny  or  felony.^ 

B  See  Kex  v.  Webster,  cited  ante. 

[The  old  common  law  rule  does  not  obtain  in  Texas.  Alvia  v.  State,  42 
Tex.  Crim.,  424,  426  (1901);  Harberger  v.  State,  4  Tex.  App.,  26,  27 
(1878).] 

6  Jackson  v.  State,  11  Ohio  St.,  104  (1860),  a  well  considered  case,  in 
which  the  case  of  Hoskins  v.  Tarrance  (infra),  was  approved. 

[The  following  articles  are  the  subject  of  larceny:  Chandeliers  screwed 
into  gas-pipe  attached  to  the  ceiling.  Smith  v.  Commonwealth,  77  Ky., 
31  (1878)  ;  copper  boxes  connected  by  a  pipe  to  a  still  and  worm.  Clement 
V.  Commonwealth,  20  Ky.  L.  E.,  688,  689   (1898).] 

[Sugar-cane  severed  from  the  soil  by  the  owner  and  placed  in  windrow 
on  the  plantation  for  the  service  of  the  place  (to  be  used  later  as  seed 
cane)  although  "immovable  by  destination"  by  fiction  of  law,  is  not 
80  attached  to  the  soil  as  to  make  one  carrying  it  away,  guilty  of  "sever- 
ing" it  under  the  statute.     State  v.  Green,  106  La.,  440,  441   (1902).] 

[Pigs  bitten  by  a  mad  dog,  were  shot  and  buried  by  their  owner.  Held, 
that  they  had  not  become  so  attached  to  the  soil  as  not  to  become  subjects 
of  larceny.     Eegina  v.  Edwards   (1877),  10  Cox  Mag.,  452,  453.] 

7  Hoskins  v.  Tarrance,  5  Blackf.,  417   (1840). 

[The  words:  "Tell  Susan  to  bring  back  the  door  she  and  the  young 
'uns  stole  from  my  house"  are  not  actionable  in  themselves,  as  real  estate 
cannot  be  the  subject  of  larceny.  Blackburn  v.  Clark,  19  Ky,  L.  E., 
659  (1897).] 

8  See  State  v.  Cherry,  72  N.  C,  123  (1875) ;  State  v.  Stephenson,  2  Bail., 
334  (1831);  Comfort  v.  Fulton,  39  Barb.,  56  (1861);  s.  c.  13  Abb.  Pr., 
376;  Bartlett  v.  Brown,  6  E.  I.,  37  (18.59);  3  E.  S.,  N.  Y.  (5th  ed.),  959, 
§  70;   971,  §  1;  973,  §  15,  div.  4;  E.  S.  111.   (1874),  p.  378,  §§   173,  175; 

670 


CHAP.    XIV.]  LARCENY,  ETC.  *452 

By  the  Statute  of  4  Geo.  II.,  c.  32  (anno  1731),  it  was  enacted 
that  every  person  who  shall  steal,  rip,  cut  or  break,  with  intent 
to  steal,  any  lead,  iron  bar,  iron  gate,  iron  palisadoe  or  iron 
rail  whatsoever,  being  fixed  ^  to  any  dwelling-house,  out-house, 
coach-house,  stable  or  other  building,^  "^  used  or  occupied  with 

Eev.  Code  of  Geo.,  §  2194;  4  BI.  Com.,  233;  2  East's  P.  C,  587.  [Scham- 
berger  v.  State,  68  Ala.,  543  (1881)  ;  Sullins  v.  State,  53  Ala.,  474  (1875)  ; 
State  V.  Salisberry,  49  Kan.,  160  (1892)  ;  State  v.  Prince,  42  La.  Ann., 
817,  822  (1890)  ;  see,  also,  Newsom  v.  State,  107  Ala.,  133  (1894)  ;  Long 
V.  State,  28  So.,  775,  777  (Fla.,  1900) ;  McCall  v.  Walter,  71  Ga.,  287,  289 
(1883);  King  v.  Beauvais,  7  Can.  Crim.,  494  (Que.  K.  B.,  1904).] 

[By  statute,  any  person  who  severs  and  carries  away  from  the  freehold, 
any  property  thereto  attached,  under  such  circumstances  as  would  render 
the  trespass  a  larceny,  if  the  thing  severed  and  carried  away  was  personal 
property,  is  guilty.     Johnson  v.  State,  61  Ala.,  9,  11   (1878).] 

8  In  Rex  V.  Hedges,  1  Leach  C.  C,  240  (1779) ;  2  East  P.  C,  590,  note, 
the  prisoner  was  indicted  for  stealing  six  light  glazed  window-sashes.  The 
window-frames  from  which  they  were  taken  were  fixed  into  the  proper  places, 
but  the  sashes  were  neither  hung  nor  beaded  in  the  frames,  but  were  fastened 
in  by  laths  nailed  across  the  frames  to  prevent  their  falling  out.  Held, 
that  they  were  not  fixed  to  the  freehold. 

10  All  buildings  appear  to  be  within  this  act.  See  Rex  v.  Norris,  Russ.  & 
E.  C.  C,  69  (1804),  where  a  summer-house,  used  occasionally  for  tea  and 
refreshment,  within  the  same  inclosure  as  the  dwelling-house,  though  half 
a  mile  distant,  v,as  held  to  be  a  building  within  this  Statute,  and  a  convic- 
tion for  stealing   lead   fixed   thereto,   held   good. 

So  as  to  a  church.  Rex  v.  Hickman,  1  Leach,  C.  C,  358  (1784)  ;  s.  C, 
2  East's  P.  C,  593;  Rex  v.  Richard  Isley,  Id.,  360  (1785);  Rex  v.  Parker 
&  Easy,  2  East's  P.  C,  .592   (1782). 

A  window  casement  made  of  iron,  lead  and  glass  is  not  within  the  above 
Statute,  nor  21  Geo.  III.,  c.  68  made  to  remedy  it,  and  providing  for 
punishing  such  persons  as  shall  rip,  cut,  break,  or  remove  with  intent  to 
steal  any  copper,  brass,  bell-metal,  utensil  or  fixture,  being  fixe<l  to  any 
dwelling-house,  etc.  Rex  v.  John  Senior,  2  Leach,  C.  C,  559  (1788);  s.  c, 
2  East's  P.  C,  593. 

Where  an  indictment  on  this  Statute  (4  Geo.  IT.)  charged  the  prisoner 
with  stealing  iron  rails  fixed  to  a  tomb  in  a  church-yard,  belonging  to  a 
certain  building  called  Islington  Church,  and  laid  respectively  to  be  the 
property  of  the  vicar,  church-wardens,  parishioners,  and  of  a  person  un- 
known; and  it  appeared  that  the  tomb  was  not  connected  by  any  building 
with  the  church;  all  the  judges  on  a  reference  to  them  hold  that  the 
offense  was  not  within  the  statute.  Rex  v.  John  Davis,  2  East 's  P.  C, 
593    (1792). 

A  person  who  procures  possession  of  a  house  under  a  written  agreement 
between  himself  and  the  landlord  for  u  lease  of  twenty-one  years,  entered 

671 


•453  THE   LAW    OF   FIXTURES.  [CHAP.   XIV. 

[*453]  *sueh  dwolling-honse,  or  thereunto  belonging,  or  to  any- 
other  buihling  whatsoever,  or  fixed  in  any  garden,  orchard, 
court -yard,  fence  or  outlet  "  belonging  to  any  dwelling-house  or 
other  building,  shall  be  deemed  and  construed  to  be  guilty  of 
felony,  etc.  By  the  Statute  of  7  &  8  Geo.  IV.,  eh.  29  ^2  (anno 
1827),  the  laws  in  relation  to  larceny  and  other  offenses  con- 
nected therewith  wei'e  consolidated  and  amended.  Section  44 
of  this  Statute  enacts,  that  if  any  person  shall  steal  or  rip,  cut 
or  break,  with  intent  to  steal,  any  glass  or  wood-work  belonging 
to  any  building  whatsoever,  or  any  lead,  iron,  copper,  brass  or 
other  metal,  or  any  utensil  or  fixture,  whether  made  of  metal 
or  other  material,  respectively  fixed  ^^  in  or  to  any  building  ^^ 

into  for  the  purpose  of  getting  a  fraudulent  possession  of  the  house,  is  by 
stealing  the  lead  aflfixed  to  the  house,  guilty  of  larceny  under  4  Geo.  II., 
c.  32.    Bex  V.  Munday,  2  Leach  C.  C,  991  (1799). 
See  note  (i*)  p.  *453. 

11  As  to  what  is  an  outlet  or  garden  belonging  to  a  house  or  building,  see 
Eex  V.  Richards,  Russ.  &  R.  C.  C,  28   (1802). 

12  See,  also,  the  Statute,  21  Geo.  III.,  c.  68  (1781),  amending  4  Geo.  II., 
c.  32.  See,  also,  the  subject  considered  in  2  East's  P.  C,  587  (ch.  16,  § 
27)  ;   2  Russ.  on  Crimes,  63,  et  seq. 

The  provisions  of  the  Statute  7  &  8  Geo.  IV.,  c.  29,  are  with  some  slight 
amendments  re-enacted  in  24  &  25  Vict.,  c.  96  (1861) ;  but  as  the  decisions 
cited  are  mostly  upon  the  construction  of  7  &  8  Geo.  IV.,  c.  29,  and  the 
earlier  Statute  4  Geo.  II.,  c.  32,  those  are  here  presented. 

13  See  Regina  v.  Gooch,  8  C.  &  P.,  293  (1838);  Rex  v.  Hedges  {supra). 
1*  See  note  (lo)  p.  *452.     A  place  intended  for  a  cart-shed,  boarded  up 

on  all  sides  and  having  a  door  with  a  lock  to  it,  and  a  wooden  frame-work 
for  a  roof  ready  for  thatching,  but  not  thatched,  some  gorse  being  thrown 
on  it,  is  a  building  within  7  &  8  Geo.  IV.,  c.  29,  §  44.  Rex  v.  Worrall,  7 
C.  &  P.,  516   (1836). 

Where  the  prisoners  stole  the  lead  gutters  of  some  brick,  timber,  and 
tile-made  sheds  built  on  a  wharf,  and  the  indictment  charged  the  stealing 
of  lead  fixed  to  a  wharf,  the  conviction  was  held  good,  as  the  evidence 
showed  that  the  sheds  were  part  of  the  wharf,  and  that  the  wharf  was  a 
building  within  the  meaning  of  this  Statute.  Lord  Campbell,  C.  J.:  "The 
shed  must  be  considered  part  of  the  wharf.  It  is  enough  if  the  indictment 
alleges  that  the  lead  is  fixed  to  that  which  may  be  a  building  and  which  is 
proved  by  the  evidence  to  be  a  building.  Here  it  is  clearly  proved  that 
the  lead  is  fixed  to  a  building."  Reg.  v.  Rice,  28  L.  J.,  M.  C.,  64  (1859)  ; 
s.  c,  Bell's  C.  C,  87. 

But  a  plank  used  as  a  seat  in  the  grounds  of  the  Duke  of  Beaufort,  the 
plank  being  laid  in  mortar  on  the  top  of  a  wall  and  pillars  at  the  ends  of 
it,  there  being  no  roof,  is  not  a  building  within  the  meaning  of  the  Act. 
Eex  V.  Eeece,  Monmouth  Lent.  Ass.   (1828);   2  Russ.  on  Crimes,  65. 

672 


CHAP.    XrV.]  MALICIOUS   INJURIES.  *454 

*whatsoever,  or  anything  made  of  metal  fixed  in  any  [*454] 
land  being  private  property,  or  for  a  fence  to  any  dwelling- 
house,  garden  or  area,  or  in  any  square,  street  or  other  place 
dedicated  to  public  use^^  or  ornament,  every  such  offender 
shall  be  guilty  of  felony,  and  being  convicted  thereof  shall  be 
liable  to  be  punished  in  the  same  manner  as  in  the  case  of  simple 
larceny ;  and  in  case  of  any  such  thing  fixed  in  any  square,  street, 
or  other  like  place,  it  shall  not  be  necessary  to  allege  the  same  to 
be  the  property  of  any  person. 

Sections  38^^  et  seq.  make  it  felony  in  certain  cases  to  steal, 
cut,  break,  root  up,  etc.,  with  intent  to  steal,  trees,  saplings, 
shrubs,  plants,  roots,  fruit,  vegetable  productions,^"^  etc. 

By  Section  37,^^  the  stealing  or  severing  with  intent  to  steal 
the  ore  of  any  metal,  etc.,  or  coals,  etc.,  is  made  a  felony. 

II.    Malicious  Injuries. 

The  law  with  respect  to  malicious  injuries  to  property  is 
pretty  generally  regulated  by  statute,  and  it  would  be  foreign  to 
the  scope  of  this  work  to  enter  into  an  extended  consideration  of 
the  subject.i^ 

An  indictment  for  stealing  a  copper  pipe  fixed  to  the  dwelling-house  of 
A.  &  B.,  is  not  supported  by  proof  of  stealing  a  pipe  fixed  to  two  rooms  in 
the  same  house,  of  which  A.  &  B.  are  separate  tenants.  Rex  v.  Finch,  1 
Mood.  C.  C,  418    (1834). 

Proof  that  one  received  the  rents  is  held  to  be  sufficient  prima  facie 
evidence  of  ownership  of  a  dwelling-house  in  support  of  an  indictment  for 
stealing  lead  affixed  thereto.  Reg.  v.  Brummitt,  8  Cox  C.  C,  413  (1861); 
s.  c,  L.  &  C,  9;  3  L.  T.  (N.  S.),  679;  9  W.  R.,  257. 

15  To  the  point  that  a  church-yard  is  a  place  dedicated  to  the  public  use, 
etc.,  so  that  stealing  brass  fixed  to  tombstones  situated  therein  is  within 
the  Statute,  see  Rex  v.  Blick,  4  C.  &  P.,  377  (1830),  per  Bosanquet,  J.  See, 
also.  Rex  v.  .Jones,  Gloucester  Spr.  Ass.  (1828),  2  Russ.  on  Crimes,  65; 
Reg.  V.  Jones,  7  Cox  C.  C,  498  (1858);  s.  c,  Dears.  &  B.  V..  C,  555;  4 
Jur.  (N.  S.),  394;  27  L.  J.,  M.  C,  171,  a  copper  suu-dial  fixed  by  screwa 
on  the  top  of  a  wooden  post  fixed  in  a  church-yard. 

10  See  24  &  25  Vict.,  c.  99,  s.  33. 

"See  Rex  v.  Hodges,  M.  &  M.,  341  (1829);  Rex  v.  Taylor,  Russ.  &  R., 
373  (1819);  Reg.  v.  Brumby,  3  C.  &  K.,  315  (1851).  See,  genorully,  2 
Buss,  on  Crimes,  67  et  seq.,  where  the  subject  is  fully  considered. 

"Id.,  sec.  38;  Rex  v.  Webb,  1  Mood.  C.  C,  431    (1835). 

10  Under  Sess.  Acts,  1869,  p.  71  (Wagn.  Stat.  462,  §  56),  of  Missouri, 
providing  for  the  punishment  of  certain  malicious  trespasses,  the  trespass 

43  673 


•■155  THE   LAW   OF  FIXTURES.  [CHAP,    XIV. 

[*455]     *In  England  the  law  on  this  subject  has  been  revised 
and  consolidated  in  24  &  25  Vict.,  c.  97.^ 

By  see.  14  of  this  act  it  is  made  a  felony,  unlawfully  and 
maliciously  to  cut,  break,  or  destroy,  or  damage  with  intent  to 
destroy  or  render  useless  any  loom,2  frame,^  machine,  engine, 
tackle,-*  tool,  or  implement  whether  fixed  or  movable  prepared 

complained  of  must  be  wilful  and  malicious.  It  docs  not  apply  where  the 
party  simply  acts  upon  a  mistaken  view  of  his  legal  rights;  and,  therefore, 
not  to  tlie  case  of  a  tenant  removing  fixtures  from  the  demised  premises 
before  the  term  has  expired  upon  an  honest  conviction  of  what  he  believes 
to  be  his  rights,  however  mistaken  he  may  have  been.  State  v.  Newkirk, 
49  Mo.,  84  (1871).  See,  also,  Eeg.  v.  Pembleton,  12  Cox  C.  C,  607  (1874)  ; 
S.  C,  2  L.  R.  C.  C,  119;  43  L.  J.,  M.  C,  91;  Rev.  Stat.  111.  (1874),  p. 
380,  §  192;  381,  §  195  et  seq.;  382,  §  201;  2  Comp.  Laws  Mich.  (1871), 
p.  2088,  §  7597  et  seq.;  2  Bish.  Crim.  Law  (5th  ed.),  §  984  et  seq.;  Bish. 
Stat.  Crimes,  §  430,  et  seq.  [See  "Wheeler  v.  State,  109  Ala.,  56  (1895)  ; 
Harris  v.  State,  73  Ga.,  41  (1884)  ;  State  v.  Rising,  10  Nev.,  97,  102 
(1875);  Anderson  v.  How,  116  N.  Y.,  336  (1889);  State  v.  Jones,  129 
N.  C,  508  (1901);  State  v.  McCracken,  118  N.  C,  1240,  1242  (1896); 
State  V.  Roseman,  66  N.  C,  634,  635  (1872)  ;  Allgood  v.  State,  95  Tenn., 
471,  472  (1895).] 

[A  tenant  removing  window-sash  which  every  layman  and  some  lawyers 
■would  think  he  had  a  right  to  remove,  is  not  guilty  of  wilfully  injuring  the 
house.  State  v.  Whitener,  93  N.  C,  590  (1885).  And  the  tenant  making 
such  removal  while  he  is  in  possession  before  his  lease  expires,  cannot 
be  indicted  under  Section  1062  of  The  Code.  State  v.  Whitener,  92  N.  C, 
798,   799    (1885).] 

[Where  there  is  a  iona  fide  dispute  as  to  a  boundary  line  or  the  pos- 
session of  premises,  the  removal  of  fences  or  the  severing  of  crops,  is  not 
malicious.  The  criminal  law  may  not  be  invoked  to  decide  who  is  en- 
titled to  land.  Hughes  v.  State,  103  Ind.,  344,  348  (1885);  Dawson  v. 
State,  52  Ind.,  478  (1876);  State  v.  Haney,  32  Kan.,  428,  431  (1884); 
Price  v.  Tawhao,  3  N.  Z.  L.  R.,  Supr.  Ct.,  145   (1884).] 

[An  information  charging  malicious  injury  to  personal  property  is  not 
supported  by  e\ddence  of  malicious  injury  to  a  stationary  engine  which 
is  a  part  of  the  realty.  People  v.  Jones,  120  Mich.,  283,  284  (1899).  And, 
conversely,  where  a  person  claiming  to  be  the  owner  of  an  engine,  shed 
and  ore-crusher,  which  could  be  moved  without  injury  to  the  ground,  enters 
the  mining-lot  of  another  for  the  purpose  of  taking  possession  of  these 
articles,  he  is  not  guilty  of  forcibly  taking  possession  of  real  property. 
State  v.  Brinkerhoff,  44  Mo.  App.,  169    (1891).] 

1  See,  also,  7  &  8  Geo.  IV.,  c.  30. 

2  See  Rex  v.  Hill,  R.  &  R.  C.  C,  483   (1822). 

3  See  Rex  v.  Tracey,  E.  &  R.  C.  C,  452  (1821). 

4  See  Reg.  v.  Smith,  6  Cox  C.  C,  198  (1853). 

674 


CHAP.    XIV,]  MALICIOUS   INJURIES.  *456 

for  or  employed  in  carding,  spinning,  throwing,  weaving,  etc., 
or  otherwise  manufacturing  or  preparing  any  goods  or  article 
of  silk,  woolen,  linen,  cotton,  etc. 

Section  15  makes  it  a  felony  unlawfully  and  maliciously  to 
cut,  break,  or  destroy,  or  damage  ^  with  intent  to  destroy  or 
render  useless  any  machine  *^  or  engine,  whether  fixed  or  mov- 
able, used  or  intended  to  be  used  for  sowing,  reaping,  mowing, 
threshing,^  etc.,  or  for  performing  any  other  agricultural  opera- 
tion, or  any  machine  or  engine,  or  any  tool  or  implement, 
whether  fixed  or  movable  prepared  for  or  employed  in  any 
manufacture  whatever  (except  the  manufacture  of  silk,  woolen, 
linen,  cotton,  etc.,  goods). 

Sections  16  et  seq.  provide  for  malicious  injuries  to  corn, 
*trees  and  vegetable  productions;'^  section  25  for  mali-  [*456] 
eious  injuries  to  fences;  sections  26  et  seq.  for  malicious  injuries 
to  mines,  among  other  ways,  by  pulling  down,  destroying  or 
damaging,^  etc.,  any  steam-engine  or  other  engine  for  sinking, 
draining,  ventilating,  etc.,  any  mine,  or  any  appliance  or 
apparatus  in  connection  with  such  engine  or  any  staith,  build- 
ing or  erection^  used  in  conducting  the  business  of  any  mine, 

etc. 

Section  13  makes  it  a  misdemeanor  for  any  tenant  unlaw- 
fully and  maliciously  i*^  to  pull  down  or  demolish,  or  begin  to 
pull  down  or  demolish  the  dwelling-house  or  other  building  or 
part  thereof  held  by  him,  or  maliciously  to  pull  down  or  sever 
from  the  freehold  any  fixtures  being  fixed  in  or  to  such  dwel- 
ling-house, etc.  Sections  11  and  12  relate  to  offenses  to  jiroperty 
committed  by  persons  riotously  and  tumultuously  assembled  to- 
ts Sec  Reg.  V.  Gray,  9  Cox  C.  C,  417  (1864).  Reg.  v.  Fisbor,  10  Cox  C. 
C,  146  (1865). 

oSee  Reg.  v.  Gray  (supra);  Rex  v.  Mackerel,  4  C.  &  P.,  448  (1831); 
Rex  V.  Fidlor,  4  C.  &  P.,  449  (1831);  Rex  v.  Crutchlcy,  5  C.  &  P.,  133 
(1831);  Rex  v.  Hutchins,  Deac.  C.  L.,  1517;  Rex  v.  Bartlott,  Id.,  Rex  v. 
Chubb,  Id.,  1518;   Rex  v.  West,  Id. 

7  See  Rex  v.  Taylor,  R.  &  R.  C.  C,  373  (1819) ;  Rex  v.  Whateley,  4  M.  & 
R.,  431   (1829). 

8  Reg.  V.  Norris,  9  C.  &  P.,  241   (1840). 

oRog.   V.   Whittingham,   9   C.   &   P.,    234    (1840).      See,   also,   Orgell    v. 

Smith  {infra). 

i"Soo  State  v.   Ncwkirk    (antr)  ;    Reg.   v.   IVmbloton,    12  Cox  C.  C,  607 

(1874);  s.  c,  2  L.  R.,  C.  C,  119. 

675 


•Af\ 


457  THE   LAW   OP   FIXTURES.  [CHAP.    XIV. 

gether  to  the  disturbance  of  the  public  peace.  Sec.  11  makes  it 
a  felony  for  such  persons  unlawfully  and  with  force  to  demol- 
ish, or  pull  down  and  destroy,  or  to  begin  to  demolish,  etc.,  any 
church,  chapel,  etc.,  or  any  house,^^  stables,  etc.,  building  or 
erection  used  in  farming  land  or  in  carrying  on  any  trade  or 
manufacture,  etc.,  or  any  machinery,  whether  fixed  or  movable,^  ^ 
prepared  for  or  employed  in  any  manufacture,  or  any  steam  or 
other  engine,  etc.,  for  working,  etc.,  any  mine.  Sec.  12  makes 
it  a  misdemeanor  unlawfully  and  with  force  to  injure  or  damage 
any  such  church,  chapel,  etc.,  as  in  the  preceding  section. 

[•457]  *III.    Burglary. 

Burglary  is  defined  to  be  the  unlawful  breaking  and  entering 
in  the  night  time  into  another's  dwelling-house,  with  the  in- 
tent to  commit  a  felony  therein.^  ^  ^^d  in  order  to  constitute 
the  offense  both  the  breaking  as  well  as  the  entry  must  be  of 
something  which  constitutes  a  part  of  the  dwelling-house. 

There  seems  to  have  been,  however,  in  this  connection,  where  it 
would  work  a  fatal  prejudice  to  the  prisoner,  some  relaxation 
of  the  rule  that  fixtures  are  to  be  deemed  a  part  of  the  realty; 
and  with  regard  to  cupboards,  presses,  lockers  and  other  fixtures 
of  the  like  kind,  it  seems,  that  a  distinction  ought  to  be  made  be- 
tween cases  relative  to  mere  property,  and  such  wherein  life  is 
concerned.  In  questions  between  the  heir  or  devisee  and  the 
executor,  those  fixtures  may  with  propriety  enough  be  considered 

11  Destroying  movable  shop  shutters  is  not  a  beginning  to  demolish  within 
the  statute,  as  they  are  not  part  of  the  freehold.  Eeg.  v.  Howell,  9  C.  & 
P.,  437  (1839).  See,  however,  as  to  window-shutters  when  part  of  a 
dwelling  in  a  case  of  burglary,  Gibbon's  Case,  Foster's  C.  L.,  107  (1752), 
post.  See,  also,  1  Hale  P.  C,  552.  [See  Fletcher  v.  Commonwealth,  80 
S.  W.,   1089   (Ky.,  1904).] 

[An  electric  advertising  sign  does  not  form  a  part  of  the  building  to 
which  it  is  aflSxed  and  does  not  violate  an  act  forbidding  a  "projection 
from  any  building."     Hull  v.  London  Council  [1901],  1  K.  B.,  580.] 

12  See  Orgell  v.  Smith,  6  M.  &  S.,  182   (1817);   1  Price,  343. 

13  2  Bish.  Crim.  Law,  §  90;  4  Bl.  Com.,  224;  3  Inst.,  63. 

[Where  a  house  is  erected  by  one  person  upon  the  lands  of  another  by 
permission,  its  ownership  is  severed  from  that  of  the  freehold;  and,  in  an 
indictment  for  burglary,  it  is  proper  to  allege  ownership  in  the  person  who 
erected  and  occupies  it.     Webb  v.  State,  52  Ala.,  422,  423  (1875).] 

G76 


CHAP.   XIV.]  BURGLARY.  *458 

as  annexed  to,  and  parts  of  the  freehold.  But  in  capital  eases, 
such  fixtures  which  merely  supply  the  place  of  chests  and  other 
ordinary  utensils  of  household,  have  been  considered  in  no  other 
light  than  as  mere  movables  partaking  of  the  nature  of  those 
utensils  and  adapted  to  the  same  use.^-*  But  if  the  breaking  is 
merely  of  a  trunk  or  box  from  which  the  goods  are  stolen,  clearly 
the  offense  is  not  burglary.i^  Cutting  a  hole  in  the  window- 
shutters  of  the  prosecutor's  shop  which  is  part  of  his  dwelling- 
house,  and  putting  the  hand  through  the  hole  and  removing 
property,  or  forcing  the  blinds,  the  window  being  raised,  there 
being  no  other  entry  or  breaking,  is  held  to  be  a  sufficient  entry 
or  breaking  to  constitute  burglary .i*^  But  simply  forcing  and 
putting  the  hand  within  outside  shutters,  the  window  being 
down  and  the  glass  remain*ing  unbroken,  is  not  a  suffi-  [*458] 
cient  entry .17  A  shutter-box  partly  projected  from  the  wall 
of  the  house  and  adjoining  one  side  of  the  window  of  the  shop 
which  side  was  protected  by  wooden  paneling  lined  with  iron 
has  been  considered  as  not  constituting  any  part  of  the  dwelling 
so  as  to  constitute  the  breaking  and  entering  of  it  burglary, 
though  it  seems  clear  that  it  would  have  passed  with  the  free- 
hold as  between  executor  and  heir.^^ 

14  See  Foster 's  Cr.  L.,  109 ;  1  Gab.  Crim.  Law,  172 ;  1  Hale  P.  C,  527, 
555;  2  East  P.  C,  489;  State  v.  Wilson,  Coxe,  439,  441   (1793). 

[A  frame  structure,  sixteen  feet  square,  with  doors  and  windows,  and 
covered  with  a  tin  roof,  used  as  a  hen-house,  is  a  building  within  the 
statute  defining  burglary.    Gillock  v.  People,  171  111.,  307,  312  (1898).] 

16  1  Hale  P.  C,  524,  554;  2  East  P.  C,  488;  State  v.  Wilson,  Coxe,  439, 

441   (1793). 

10  Gibbon '8  Case,  Foster's  Cr.  L.,  107  (1752);  Commonwealth  v.  Steph- 
enson, 8  Pick.,  354  (1829),  per  Parker,  C.  J.,  See,  generally,  as  to  what 
is  a  sufficient  breaking,  1  Hale  P.  C,  552.  [Grimes  v.  State,  77  Ga.,  762 
(1886)  ;  State  v.  Boyscn,  30  Wash.,  338,  330   (1902).! 

[Removing  a  wire-screen  fastened  into  a  window  with  nails,  is  a  sufficient 
breaking.     Sims  v.  State,  136  Ind.,  358.  360  (1893).] 

17  The  State  v.  McCall,  4  Ala.,  643  (1843).  [See  Minter  v.  State,  71  Ark., 
178  (1903),  Gaddie  v.  Commonwealth,  25  Ky.  L.  R.,  15S5  (1904).] 

18  Rex  V.  Paine,  7  C.  &  P.,  135  (1835).  See,  also,  Reg.  v.  Howell,^  0 
C.  &  P.,  437  (1839);  Commonwealth  v.  Trimmer,  1  Mass.,  476  (1805). 
[See  Hunter  v.  Commonwealth,  7  Gratt.,  641    (Va.,  1850).] 

[A  grating  on  the  street,  which  gave  cntr:in<-o  to  a  collar  under  a  store- 
room is  a  part  of  the  storehouse,  the  removal  of  which  conatitufcH  a 
breaking.  Commonwealth  v.  Bruce,  79  Ky.,  560,  561  (1881);  People  v. 
Nolan,  22  Mich.,  229   (1871).] 

G77 


*459  THE   LuVW   OP    FIXTURES.  [CHAP.   XIV. 

IV.    Deodands.^*^ 

"The  peculiar  nature  which  personal  chattels  acquire  by 
reason  of  their  annexation  to  the  realty,  gave  rise  formerly  to 
some  nice  questions  connected  with  the  subject  of  deodands. 
And  although  this  curious  branch  of  law  may,  perhaps,  hence- 
forth be  rather  matter  of  study  for  the  antiquarian  than  the 
practical  lawyer  (since  deodands  have  recently  been  entirely 
abolished  by  the  legislature), ^^  still  it  seems  proper  not  to  pass 
wholly  unnoticed  the  few  striking  cases  upon  this  subject  which 
are  to  be  found  in  the  books ;  inasmuch  as  they  throw  a  light  on 
the  principles  out  of  which  the  general  law  of  fixtures  has  grown 
up,  and  serve  to  explain  the  nature  of  this  species  of  property 
in  its  strict  relation  to  land. 

"The  ancient  authorities  laid  it  down,  that  if,  in  case  of  mis- 
adventure, the  death  of  a  man  was  occasioned  by  means  of  a 
thing  affixed  to  the  freehold,  it  was  liable  to  be  forfeited  to  the 
king  as  a  deodand  in  the  same  manner  as  any  movable  chattel. 
[*459]  *But,  according  to  later  opinions,  it  was  considered  that 
there  could  not  be  a  deodand  in  such  a  case,  unless  the  thing 
was  actually  separated  from  the  freehold  before  the  accident 
happened.  Thus,  in  the  Axminster  Parish  Case,-i  a  man  ringing 
a  bell  in  a  church  was  drawn  up  and  strangled  by  the  rope. 
Two  justices,  Hyde,  Ch.  J.,  and  Windham,  J.,  were  of  opinion, 
that  the  bell  was  not  forfeited,  because  parcel  of  the  freehold; 
but  the  other  two  justices,  semh.  contra?"^     The  case  was  ad- 

19  The  antiquated  learning  of  tWs  section  might  perhaps  v/ith  propriety 
be  altogether  omitted  from  this  volume;  but,  as  it  is  the  object  of  the 
author  to  present  not  only  the  law  as  it  now  is,  but  also  exhaustive  refer- 
ences to  the  cases  decided  at  the  different  stages  of  its  growth  to  its  present 
condition,  and  as  this  branch  of  the  law  of  fixtures  has  been  presented 
within  a  convenient  compass  by  Mr.  Ferard  in  his  work  on  Fixtures  (p. 
332),  it  has  been  thought  expedient  to  present  his  observations  on  the 
subject  at  this  place. 

20  Statute  9  &  10  Vict.,  ch.  62  (which  took  effect  from  and  after  Sept. 
1,  1846). 

2iEex  v.  Crosse,  1  Sid.,  207  (1675);  s.  c,  1  Lev.,  136;  1  Keb.,  723,  745; 
Bowman  v.  Milbanke,  Sir  T.  Eaym.,  97  (1675)  ;  s.  p.,  and  seems  to  be  s.  C. 
And  see  Eeg.  v.  Wheeler,  6  Mod.,  187  (1704).  See,  also,  Norff  v.  Caudray, 
Dyer,  fol.  78,  in  notis. 

22 In  Woodward  v.  Mackpeth,  Comb.,  132  (1869),  it  is  said  that  church- 

678 


CHAP.    XIV.]  DEODANDS.  *460 

journed,  and  was  not  afterwards  moved.^^  However,  in  the 
discussion  of  this  case,  it  was  said,  that  if  a  door  or  gate  is 
forced,  per  vim  venti,  against  a  man  and  kills  him,  that  it  shall 
not  be  deodand.  Quod  fuit  concessum  per  Ciir.--^  In  like 
manner,  it  is  said  to  have  been  held  by  Clench  and  Fenner, 
Justices,  that  the  sail  of  a  wind-mill,  which  causes  a  death  by- 
striking  against  a  man,  cannot  be  a  deodand.^^  And  Clench,  J., 
held  that  the  linen  of  the  sail  was  liable  to  forfeiture;  which 
Fenner  denied,  because  it  participated  of  the  nature  of  the  sail 
*itself.  So,  according  to  a  more  modern  case,  a  mill-  [*460] 
stone  or  the  wheel  of  a  forge  or  mill,  which  occasions  a  death, 
cannot  be  accounted  a  deodand.-^  And  so  a  tree,  not  severed, 
but  which  is  blown  by  the  wind  against  another.-" 

"On  the  other  hand,  if  the  thing  was  severed  from  the  free- 
hold before  causing  the  death,  then  it  was  liable  to  forfeiture. 
Thus,  if  a  bell  fell  from  a  steeple,  or  a  mill-stone  fell  from  the 

bells  are  chattels  not  fixed  to  the  freehold,  though  the  frames  are.  See  1 
Salk.,  164;  Ferard  Fixt.,  205,  in  notis.  If  a  person  hang  a  bell  in  the 
steeple,  it  becomes  church  property.  2  Salk.,  571.  [It  seems  clear  that 
in  the  United  States,  church  bells  are  ordinarily  part  of  the  freehold.] 
See  ante  pp.  *240,  *354. 

23  ' '  Another  argument  urged  against  the  forfeiture  in  the  Axminster  Case, 
was  that  the  bell  had  already  been  dedicated  to  God.  This  argument  is 
founded  on  the  explanation  given  of  a  deodand  by  some  of  the  old  writers, 
viz.:  'A  thing  given  or  rather  forfeited  to  God  for  the  pacification  of  His 
wrath,  where  any  Christian  man  came  to  a  violent  end  without  the  fault 
of  any  reasonable  creature;  which  thing  so  given  to  God  was  to  be  sold 
and  distributed  to  the  poor  by  the  king's  almoner,  for  an  expiation  for 
that  dreadful  event.'  Flcta  says,  the  price  is  to  be  distributed  to  the 
poor  fcr  the  soul  of  the  king,  his  ancestors,  and  all  faithful  people  de- 
parted this  life.  Lib.  1,  ch.  25.  Other  ancient  authorities  consider  it  a 
payment  for  the  purchase  of  propitiatory  masses  for  the  soul  of  the 
deceased,  and,  therefore,  originally,  belonging  to  the  church,  though  after- 
wards vested  in  the  king  as  a  forfeiture.  2  Inst.,  281.  While  others,  again, 
state  it  to  belong  to  the  crown  by  common  right,  to  be  distributed  in  pious 


uses. ' ' 


24  2  Rolle,  23. 

2r.  1   Sid.,  207. 

2flReg.  V.  Wheeler,  C,  Mod.,  187  (1704),  Sir  T.  Raym.,  07;  3  Inst.,  57;  1 
Keb.,  745.  See  1  Salk.,  220,  per  Pollexfen,  Ch.  J.,  in  the  case  of  the  Lord 
of  the  Manor  of  ITanip8tend.     See,  also.  Finch,  b.  3,  ch.  18. 

27  1  Sid.,  207.  And  see  1  Salk.,  220;  Hale's  P.  C,  420;  CowcH'a  Diet., 
tit.  Deodaml. 

670 


*4G0  THE  LAW  OF  FIXTURES.  [CHAP.   XIV. 

mill,  and  killed  any  one  in  its  descent,  then  it  would  have  been 
forfeited  as  a  deodand;  because  it  was  a  chattel  from  the 
moment  of  its  severance.^^  And  so,  if  a  jack-weight  fell  and 
killed  a  man,  the  weijjht  would  be  forfeited,  but  not  the  jack 
which  moved  it.^^  And,  in  like  manner,  if  a  mass  of  earth 
was  separated  from  the  soil,  and  in  falling  crushed  a  man.^*^ 
So,  if  one  in  felling  a  tree  gave  notice  to  the  bystanders,  but, 
nevertheless,  the  tree  in  its  fall  killed  one,  the  tree  was  for- 
feited.^^ And  so,  where  a  tree  was  blown  against  another,  and 
a  branch  of  the  latter  was  thereby  broken  off,  and  in  falling, 
killed  a  man,  it  was  said  that  there  should  be  a  deodand  of  the 
branch.  And,  according  to  some  authorities,  both  the  tree  and 
the  branch  should  be  forfeited.^^ 

28  1  Keb.,  723;  ^ir  T.  Eaym.,  97.  [Consistently  with  what  has  been 
stated  ante  p.  *43,  it  would  seem  that  the  better  doctrine  would  have  been, 
that  had  the  severance  been  only  accidental  or  temporary,  the  thing  severed 
■would  not  have  become  a  chattel  and  hence  would  not  be  subject  to  for- 
feiture.] 

29  1  Sid.,  207,  arg. 

30  1  Sid.,  207;  1  Keb.,  745. 

31  Coke 's  Copyholder,  45. 

32  ' '  Staundf .,  lib.  1,  ch.  12.  In  a  late  ease,  where  a  death  was  occasioned 
hy  the  explosion  of  a  steam-engine  boiler  [on  a  steamboat],  a  question  was 
made  whether  both  engine  and  boiler  were  deodand.  Reg.  v.  Brownlow,  11 
Ad.  &  E.,  119  (1839).  By  the  Statute  3  &  4  W.  IV.,  ch.  99,  sec.  29,  et  seq., 
provision  was  made  for  the  more  effectual  levying  of  deodands  by  the 
crown. ' ' 

In  Eeg.  v.  The  Eastern  Counties  Railway  Co.,  2  Dowl.  Pr.  C.  (N.  S.), 
293  (1842),  it  was  assumed  that  a  locomotive  steam-engine  was  the  subject 
of  a  deodand.  In  this  case,  four  coroner's  inquisitions  found  that  the 
deaths  of  four  persons  were  respectively  caused  on  a  certain  day  by  a 
steam-engine,  and  each  inquisition  imposed  a  deodand  on  the  engine  of 
1251.  The  deodands  having  been  estreated  into  the  Court  of  Exchequer 
under  the  Statute  3  &  4  Wm.  IV.,  ch.  99,  sec.  29,  the  court  refused  to  stay 
proceedings  en  three  inquisitions  on  payment  of  125Z,  on  the  ground  that 
the  instrument  moving  to  the  death  of  the  party  could  not  be  twice  for- 
feited by  the  same  accident,  but  left  the  parties  to  their  remedy  by 
traversing  the  inquisition  or  moving  to  quash  it  in  the  Queen's  Bench. 

See  further  on  the  subject  of  deodands,  Bract.,  lib.  3,  tract,  2,  cap.  5; 
Britt.,  cap.  17;  West's  Symb.  Indict.,  sec.  49;  Staund.  Cor.,  lib.  1,  ch.  12; 
Coke's  Copyholder,  46,  47;  Nels.  Lex.  Man.,  tit.,  Deodand,  96;  1  Hale  P. 
C,  420;  1  Hawk.,  ch.  26;  Com.  Dig.,  Waife,  E  2;  Bac.  Abr.,  tit.»  Deodand; 
7  Vin.  Abr.,  535;  Fost.  on  Homicide,  disc.  2.  ch.  1. 

680 


INDEX. 


[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

ABANDOXMENT.    See  Surrender,  Ee-entry. 
right  to  remove  fixtures  lost  by,   208. 
of  railway  track,  right  of  removal  lost,  215. 
effect  on  right  to  crops,  360,  371. 
failure  to  remove  fixtures  is,  218. 

none  where  landlord  agrees  to  make  endeavor  to  sell  fixtures,  223. 
by   vendee  under  contract,   buildings  pass   to   vendor,    383. 

ACCESSION.     81  et  seq.,  399. 

cloth   covering  of  billiard   table,   82. 

motors,  controllers  and  poles  upon  electric  cars,  82. 
ACCOUNT.     See  Injunction. 
ACCOUNT  STATED.     See  Pleading  and  Practice. 

ACOENS. 

sown  in  the  soil,  not  subject  of  emblements,  337. 
ACTION.      See    Equity,   Jurisdiction,    Pleading    and   Practice,   Eemedies, 
Statute  of  Limitation,  Waste,  Measure  of  Damages. 

is  notice,  580. 

lies  for  non-performance  of  agreement  of  tenant  to  leave  fixtures, 
224. 

lies  for  removal  of  fixtures  by  landlord  before   tenant   takes  pos- 
session, 404. 

by  vendee  under  contract  when  vendor  refuses  to  convey,  386. 

lies  for  recovery  of  rent  paid  for  buildings  under  erroneous  belief 
that   right   of   removal   existed,    256. 

for   diimagc   to  nursery  stock  can   be  brought  by   lessee,    163. 

tenant  cannot  relievo  himself  from  liability  by  a  surrender,   208. 

for  injury  to  a  removable  building,  when  transitory,  116,  217,  638. 
Assumpsit, 

in  relation  to  fixtures,  660. 

count  for  money  had  and  received,  662. 

covenant,  breach  of  how  alleged,  662. 

waiver  of  tort  and  suit  in  assumpsit,  662. 

not  applicable  to  trial  of  title  to  real  property,  662. 

when  lies  for  fixtures  or  refusal  of  vendor  under  contract  to  convey, 
386. 
Case  in  the  Nature  or  Waste, 

the  action  of,  has  superseded  the  action  of  waste,  591, 

681 


682  INDEX. 

[UEFEKENCES    ABB   TO   THE   BOTTOM    I'AGES.] 

ACTION,  continuea— 

origin  and  advantages  of,  501. 

may  bo  brought  by  whom  and  for  what,  591  et  seq. 

against  whom  it  lies,  592  et  seq. 

by  mortgagee  of  the  realty,  593  et  seq. 

by  mortgagee  when  maintainable,  594. 

by  mortgagee   measure  of   damages,   595. 

by  mortgagee,  what  must  be  averred,  596. 

inapplicable  where  executor  claims  fixtures,  597. 

does  not  lie  against  personal  representative  for  waste  by  testator 
or  intestate,  597. 

when  a  concurrent  remedy,  597. 

case  may  be  joined  to  trover  for  a  house,  651. 
Detinue,  618,  621,  626. 
Ejectment, 

when  it  lies  at  common  law,  657. 

fixtures  pass  by  virtue  of  a  recovery  in,  657. 

so,  as  to  growing  crops,  658. 

by  one  tenant  in  common  to  enforce  agreement  as  to  joint  owner- 
ship of  a  boiler,  engine,  and  stack,  659. 

to  recover  a  ' '  house, "  a  "  chamber, "  "  stable, ' '  etc.,  659. 

value  of  improvements  may  be  recouped,   79. 

when  defendants  allowed  to  remove  buildings,  615. 

railway  track  laid  without  authority  not  pass  by  virtue  of  recovery 
in,  91. 

houses  sold  by  landlord  to  his  tenant  do  not  pass  by  virtue  of  re* 
covery  •in,   66. 
Forcible  Detainer, 

right  to  crops,   352. 

heater  does  not  pass  on  recovery  in,  658. 

for  a  house,  includes  the  land,  659. 
Eeplevin, 

fixtures,  timber,  trees,  etc.,  tortiously  severed  and  removed,  recov- 
erable in,  65,  70,  618. 

fixtures  constructively  severed  recoverable  in,   622. 

maintainable  for  house  wrongfully  severed,   620. 

lies    so    long    as    the    thing    can    be    identified,    and    is    not   perma- 
nently  annexed   to   other   realty,   620. 

fixtures,  how  described  in  declaration,  621. 

fixtures,   how   described   in   affidavit,   621. 

lies   only   for   personal    property,    624. 

does  not  lie  for  unremoved  fixtures,  624. 

title  deed  recoverable  in,  625. 

cannot  be  made  the  means  of  litigating  title  to  the  realty,  625  et  seq. 

by  mortgagee   for   fixtures   severed    from    the  mortgaged   premises, 
73,  619. 


INDEX.  683 

[BEFEBEXCE3  ABE  TO  I  HE  BOTTOM  PAGES.] 

ACTION,  continued- 
ripe  corn  unsevered  recoverable  in,  362,  369,  370. 
but  growing  crops  severed  by  disseisor  in  possession,  not  recoverable 

in,    361,   628. 
coflin   and   corpse   not   recoverable   in,   325. 
Trespass, 

quare  clausum  fregit. 

gist  of  the   action,   640. 

tenant  may  maintain  against  landlord  for  injury  to  his  emble- 
ments,   363. 
damages   to    growing  crops   as  personalty,   also   recoverable   in 

trespass  before  a  justice  of  the  peace,  369. 
against  a  sheriff  for  taking  fixtures  on  fi.  fa.,  629. 
by  tenant  against  a  co-tenant,  629. 
by  mortgagee,  630. 

lessor  cannot  maintain  while  a  tenant  is  in  possession,  631. 
by  vendee  of  realty  against  the  vendor,  631. 
by  heir  or  devisee  against  executor,  632. 
de  bonis  asportatis. 

See  supra  quare  clausum  fregit. 

for   severance    and   removal   of   fixtures,    timber,    soil,    manure, 

etc.,  632,   635,   636. 
by  grantee  of  real  estate   against   the   grantor,   632. 
by  landlord  against  tenant,  633. 
by  landlord   against  a  stranger,  633. 
tenant   against   a   wrong-doer,  634. 
tenant  against   the  landlord,   636. 
auctioneer   authorized    to   sell   fixtures,   637. 
whether  it   lies  where   the  severance  and  removal  are  one  en- 
tire   act,    633,    639. 
Trover, 

what  amounts  to  a  conversion,  646,  651. 
for   manure,    179,    180,   642. 

when  it   lies  for  severance  and   conversion   of   crops,  369,   646. 
lies  for  severance  and  conversion  of  fixtures,  trees,  etc.,  642,  645. 
lies    for    severance    and    conversion   of    furniture,    650. 
lies   for   severance   and   conversion   of   house   built   on   land   of   an- 
other  by   his   consent,    650. 
does  not  lie  for  fixtures  while  unsevered,  647,  ct.  seq. 
whether  this   action   lies  where   the  severance  and  removal   are  one 

continuous  act,  654. 
of   more  extensive  application   than   trespass  dc   boniji,  655. 
by   the  mortgagee   of   the   realty,    72,  642. 
by    the    tenant    against    the    landlord,    643. 
by   the  tenant   against   a    third   person,  644. 
by  the  vendee  of  the  realty,  644. 


684  INDEX. 

[REFERENCES    AKB   TO   TUB   BOTTOM    I'AGBS.] 

ACTION,  continueii— 

by  the  lioensco  against  wrong-doer,  645. 

not  a   proper  form  of  action  to   try   title  to   laud,   645. 

lies  for  fixtures  severed  by  a  stranger,  64,   70. 

lies  for  articles  constructively   severed,   651. 

does  not  lie  for  gas-fittings  which  tenant  agreed  to  leave,  665. 

right  of  action  not  affected  by  subsequent  acts,   261,  382. 

ACT   OF  GOD.     See  Accession,   Severance. 

ADAPTATION.     See  Appropriation;   Tests. 

ADDITION.     See  Meaning. 

meaning  of  term,  10,  11,  247. 

folding  doors  are  not,  10. 

when  lemoval  is  waste,  127. 

ADMINISTEATOE.    See  Heir  and  Executor. 

ADVERSE  POSSESSION.    See  Alieno  Solo,  Ejectment,  59. 

AEROLITE, 

to  whom  belongs,  83. 

AFFIXED.     See  Meaning. 
meaning  of,  9. 

AGREEMENT.  See  Annexation,  'Removal,  Covenants  to  Repair,  Mort- 
gagor and  Mortgagee,  Statute  of  Frauds. 

limitation  to  rule  that  fixtures  may  become  personalty  by  agreement, 
34,  58,  107. 

as  to  removal  of  things  to  be  annexed  to  realty,  may  be  by  parol, 
108. 

character  as  personalty  of  things  to  be  annexed  to  freehold,  pre- 
served by  agreement,  68,  103  et  seq. 

agreement  or  understanding  to  have  this  effect  must  have  existed 
before  the  thing  was  annexed,  109. 

agreement  may  be  implied,  111  et  seq. 

house  severed  by  agreement  may  be  re-annexed  by  agreement,  108. 

after  annexation  by  a  stranger,  the  thing  annexed  cannot  afterwards 
be  converted  into  personalty  by  a  mere  oral  assent  of  the  land- 
owner without  a  severance,  110. 

sales  of  fixtures  to  be  annexed  to  realty  under  an  agreement  that 
they  shall  remain  the  vendor's  till  paid  for,  111. 

right  to  hold  a  house  as  personalty  by  agreement  not  lost  by  mov- 
ing out,  113. 

trees,  crops,  etc.,  may  remain  personalty  by  agreement,  119. 

to  remove,  made  after  disability  ceases,  is  without  consideration,  94. 

AGRICULTURAL  FIXTURES, 

distinction    between    trade    fixtures    and    erections   for    agricultural 

purposes,  166. 
Elwes  V.  Maw,  166. 


INDEX.  685 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

AGRICULTUEAL  FIXTURES,  continued- 
buildings  erected  by  agricultural  tenant  held  not  to  be  removable, 
167,  171. 

rule  criticised,  168  et  seq. 

as  between  tenant  for  life  and  reversioner,  171,  173. 

buildings  erected  by  tenant  for  life  not  removable,  171. 

McCullough  V.  Irvine,  170  et  seq. 

McCullough  V.  Irvine,  comments  thereon,  174. 

is  agriculture  a  trade?  167-175. 

scope  of  the  decision  in  Elwes  v.  Maw,  176. 

semble,  that  mere  implements  or  articles  of  machinery  are  remov- 
able, 176. 

English  Statutes,  14  &  15  Vict.,  eh.  25,  s.  3,  178. 

Agricultural  Holdings  Act,  178. 

farm  buildings,  fences,  etc.,  not  removable  as  between  tenant  for 
life  and  remainderman,  274. 

AGRICULTUEAL  HOLDINGS  ACT,  178. 

tenant's  right  to  compensation  for  trees,  163. 

AGRICULTURAL  LIEN.     See  Lien. 

ALFALFA, 

not  growing  crop,  nor  improvement,  334,  559. 

ALIENO  SOLO, 

annexations  made  in,  59,  77-101. 

rule  of  the  Roman  Law,  77. 

rule  of  the  Roman  Law,  adopted  in  modern  codes,  78. 

Britton's  observations  on  the  subject,  78. 

at  common  law  an  adverse  possessor  makes  annexations  at  his  peril, 

79. 
recoupment  of  bona  fide  improvements,  79. 
compensation  for  improvements  in  equity,  79,  80. 
compensation   for  improvements,   statutory  regulations,   80. 

See  Agrioultural  Holdings  Act. 
erections  made  by  the  owner  of  the  soil  with  the  material  of  another, 

81. 

erections  made  by  owner  of  soil  with  tlic  materials  of  another,  the 
owner  may  pursue  his  property  wherever  he  fan  trace  it,  81. 

erections  made  by  owner  of  soil  with  the  materials  of  another,  right 
may  bo  lost  by  dolay,  84. 

erections  made  by  owner  of  soil  with  the.  materials  of  another,  may 
not  recapture  when  the  property  has  lost  its  legal  identity,  8.3. 

erections  made  by  owner  of  soil  with  tho  materials  of  another,  physi- 
cal  identity  need   not  bo  lost,   R3. 

erections  made  by  owner  of  soil  wifh  tho  materials  of  another,  effoct 
of  subsequent  destruction  of  erection,  85. 

annexations  in,  by  a  stranger  with  his  own  materials,  86. 


686  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

ALIENO  SOLO,  contiuued— 

annexatious  in,  by  a  stranger  with  materials  of  third  party,  84. 
annexations  in,  by  a  stranger  with  materials  of  third  party,  demand 

necessary,  84. 
right  of  land  owner  against  chattel  mortgagee  or  conditional  seller, 

85. 
materials  purchased  by  fraudulent  representations  of  contractor,  85, 
railway  track,  removal  of,  88. 

same  rule  applies  in  case  of  joint-tenants,  etc.,  92. 
same  rule  applies  in  case  where  owner  of  land  is  under  disability,  94. 
immaterial  that  annexation  was  by  mistake,  92. 
annexation  remains  personalty  where  entry  is  made  under  order  of 

court,   117. 
distinction  as  respects  the  persons  between  whom  the  question  arises, 

95,  111. 
rule  applies  to  trees,  plants  and  crops,  99. 
rule  does  not  apply  to  leaseholds,  91. 
rule  does  not  apply  to  public  lands,  97. 
insurance  on  building,  not  recoverable  by  builder,  88. 

ALIMONY, 

crops  pass  with  land  allowed  for,  360. 

ALTAR  STONE.     See  Stone. 

goes  to  remainderman,  278. 

not  furniture,  477. 
ALTERATION.     See  Improvements,  Repairs,  Meaning. 

folding  doors  are  an,  10. 

meaning,   10,  246,  247,  248,  608. 

removal  of  building  is  not,  248,  608. 
AMBIGUITY  OF  ' '  FIXTURES, "  2,  4,  6,  22,  234. 

ANCHOR, 

of  a  ship,  not  a  fixture,  44,  45,  446. 

contra,  as  to  anchor  holding  cable  of  a  bridge,  44. 

used  to  moor  a  floating  derrick,  whether  it  renders  the  occupier  of 
the  derrick  ratable,  570. 
ANIMALS.    See  Game. 
ANNEXATION.     See  Machinery,  Be- Annexation,  Foundation. 

degree  requisite  to  constitute  a  fixture,  14  et  seq. 

what  constitutes  annexation,  14. 

cases  illustrating  the  subject,  14. 

Culling  V.   Tuffnal,   14. 

Elwes  V.  Maw,  15. 

Eex  V.  Londonthorpe,  15. 

Rex  V.  Otley,  16. 

Horn  V.  Baker,  16. 

Walker  v.  Sherman,  16. 


INDEX.  687 

[BEFEBENCES  ABK  TO  THE  BOTTOM  PAGES.] 

ANNEXATION,  continued- 
other  eases  cited  in  note,  18. 

diversity  of  opinion  as  to  degree  requisite  to  constitute  a  fixture, 
22  et  seq. 

cases  holding  annexation  necessary,  14,  22,  53. 

cases  holding  substitial  annexation  necessary,  22. 

cases  holding  slight  annexation  sufficient,  22. 

cases  holding  no  annexation  necessary,  22,  25. 

some  leading  cases  holding  no  annexation  necessary,  stated,  23  et 
seq. 

Farrar  v.  Stackpole,  23. 

Voorhis  v.  Freeman,  24. 

Pyle  V.  Pennock,  25. 

physical  annexation  not  necessary  in  Penn.,  25. 

the  test  of  physical  annexation,  too  narrow  and  arbitrary,  26,  37. 

true  rule  as  to,  27,  44. 

well  considered  in  Holland  v.  Hodgson,  43. 

well  considered  with  reference  to  statuary,  etc.,  in  Snedeker  v.  War- 
ring, 38. 

of  chattels  to  soil  of  another  with  his  consent,  103. 

character  as  personalty  retained  by  agreement  notwithstanding  an- 
nexation, 103  et  seq. 

distinction  between  buildings  and  other  annexations,   106. 

house  severed  by  agrement  may  be  re-annexed  by  agreement,  108. 

too  narrow  a  test,  37. 

alone,  insufficient,  573. 

slight,  sufficient  for  motive  power,  22. 

juxtaposition,  not,  14. 

by  belting  is  not  sufficient,  436. 

by  tube  is  not  sufficient,  449. 

by  host  is  not  sufficient,  436. 

by  pipe,  436,  578. 

sinking  into  earth  by  weight  not  sufficient,  20. 

when  stono  foundation  not  sufficient  to  niako  a  building  realty,  620. 

by  gearing  and  shafting,  makes  machinery  realty,  433. 

Constructive  Annexation,  27,  45  et  seq. 
keys,  doors,  windows,  etc.,  examples  of,  45. 
what  necessary  to  constitute  constructive  annexation,  47. 
whether  railroad  rolling  stock  is  constructively  annexed  to  the  realty, 

47. 
fixtures  constructively  annexed  pass  with  the  realty  to  the  heir,  310. 

ANNEXATIONS  TO  FREEHOLD  OF  THE  CHURCH,  324. 

ANVILS, 

go  to  executor,  273. 

pass  to  the  heir  if  annexed  to  the  freehold,  300. 


688  INDEX. 

[references  are  to  the  bottom  pages.] 

ANVILS,  continued. 

right  to  as  between  vendor  and  vendee,  etc.,  of  the  realty,  273,  381, 

468. 
whether  exempt  from  distress,  551. 

APPENDAGES.     See  Ammrtenances. 

rolling  stock  not,  567. 
APPRAISEMENT.     See   Valuation. 
APPROPRIATION  OR   ADAPTATION, 

as  tests  of  a  fixture,  24,  27,  440,  452,  453,  564,  573. 

as  evidence  of  intention,  31,  43,  58. 

with  reference  to  constructive  annexation,  47. 
APPURTENANCES,  8,  247,  395,  462,  463,  464,  467. 

machinery  is,  463. 

manure  is,  460. 

pump  is  not,  82. 

safe  is  not,  20. 
ARBITRATION.     See  Valmtion. 

ARMS, 

of  deceased  ancestor,  in  nature  of  heir-looms,  320,  324. 
do  not  go  to  remainderman,  278. 

AERAS, 

removable  by  tenant,   196. 

ASBESTOS  COVERING, 

mechanics  lien  allowed  for,  428. 
ASSESSMENT.     See   Taxatioii. 
ASSIGNEE.     See  Bankrwptcy,  Seller  and  Buyer. 

no  better  right  to  fixtures  than  assignor,  479. 

can  remove  fixtures  as  against  landlord,  211,  213. 

of  lease,  rights  as  against  a  conditional  seller,  487. 

of  lease  is  not  an  under-tenant,  231. 

of  lessors,  when  bound  by  covenants  to  pay  for  improvements  of 
lessee,  527. 

of  buyer,  no  right  as  against  a  conditional  seller,  105. 

has  no  right  to  a  building  though  removable,  106. 

ASSUMPSIT.     See  Action,  Pleading  and  Practice. 

ATTACHED,  578. 

ATTACHMENT.     See  Execution,  Annexation. 

AUCTIONEER.    See  Trespass. 

AWNINGS, 

removable  as  trade  fixtures,  143. 

right  of  removing  not  lost  by  taking  new  lease  without  reservation, 

256. 
and  awning  frames  pass  by  conveyance  of  the  realty,  394. 


INDEX.  689 

[BEFEBENCES  ARE  TO  THE  BOTTOM  PAGES.] 

AWNIXGS,  continued- 
does  not  pass  by  conveyance  of  the  realty,  436. 
covered  by  insurance  on  building,  379. 

BACK-STAND, 

in  a  mill,  a  removable  fixture,  237. 

BALANCES, 

as  between  executor  and  heir,  under  the  N.  Y.  statute,  313. 
BALCONY, 

a  fixture,  8. 

removable  as  a  trade  fixture,  142. 
BALLING-MACHINES.     See  Machinery. 

whether  they  pass  to  the  grantee  with  the  realty,  441. 
BALL-ROOM, 

removable  as  a  trade  fixture,  153,  157,  193. 
BALUSTERS, 

removable  as  trade  fixtures,  143. 
BANKRUPTCY, 

statutes  on   the   subject,   502. 

fixtures  not  goods  and  chattels  within  these  statutes,  123,  503  et  seq. 

so,  whether  the  mortgage  is  of  a  freehold  or  leasehold,  504. 

BO,  whether  erected  by  a  tenant  or  the  owner  in  fee,  504. 

80,  in  the  case  also  of  an  equitable  mortgage,  505. 

reasons  of  the  rule,  506,  511. 

80,  in  the  case  of  trade  fixtures,  though  mortgaged  separately  from 

the  leasehold  interest  of  the  mortgagor,  507. 
rule  the  same  whether  the  question  arises  between  mortgagee  and 

the  assignee,  or  between  parties  sustaining  a  different  relation, 

507,  509. 
e.  g.,  between  the  lessor  and  the  assignee,  507. 
80,  between  the  vendor  of  land  by  executory  contract  and  the  as- 
signee, 510. 
the  law  of  reputed  ownership  not  applicable  to  landlord 's  fixtures 

let  with  the  demised  premises,  509. 
stipulation    that    tenant    shall    not   remove    trade    fixtures   unless   ho 

shall  have  kept  all  his  covenants,  binding  on  the  assignee.  510. 
fixtures  only  constructively  annexed,   not  goods  and  chattels  within 

bankrupt  acts,  511. 
80,  as  to  articles  severed  without  the  knowledge  or  consent  of  the 

mortgagee,  511. 
articles  not  annexed  to  the  realty  pass  to  the  assignee,  508. 
articles  not  annexed  to  the  realty  are  "goods  and  chattels,"  16, 
when  receiver  is  entitled  to  fixtiires,  211,  226. 
trustee  occupies  no  hotter  position  than  tenant,  255. 
trustee  entitlpd   to  building  niatorials,  508. 
trustee  entitled  to  a  steam  engine,  107. 
44 


690  INDEX. 

[references  are  to  the  bottom  pages.] 
BANKRUPTCY,  continued- 
trust  eo  entitled  to  case  of  stuffed  birds,  and  a  "trophy,"  278. 
trustee  not  entitled  to  crop  on  homestead,  369. 
trustee  not  entitled  to  signboard,  508. 

trustee  who  disclaims  has  no  right  to  remove  fixtures,  206,  207. 
uncompleted  tanks  are  not  part  of  the  realty,  508. 

BAR  AND  BAR-FIXTURES.     See  Counters. 
realty  while  annexed,  125. 
removable  as  trade  fixtures,  142. 
contra,  145,  146. 

BARGES.     See  Wharf. 

used  for  piers,  occupiers  when  ratable,  570. 
of  University  Boat  Club,  when  ratable,  571. 

BARNS.     See  Buildings. 

on  pattens,  removable  by  tenant,  15. 

on  staddles  are  mere  chattels,  18,  648. 

contra,  19. 

erected  by  a  tenant  for  life  of  a  farm,  not  removable,  171. 

quaere  as  to  whether  a  bam  is  not  an  accessory  to  a  trade,  175,  1/6. 

erected  by  mortgagee  in  possession,  whether  he  may  remove  them, 

422. 
declaration  in  replevin  for,  621. 

BARRACKS, 

built  by  U.  S.  on  public  commons,  98. 

BASEBOARDS,  105. 

BATHING-TUB, 

right  to  as  between  grantor  and  grantee  of  the  realty,  389. 

is  a  trade  fixture,  43. 

BAYES, 

pass  to  heir  with  the  freehold,  300. 

BAY-WINDOW, 

is  part  of  the  realty,  380. 
BEAST-HOUSE.     See  Buildings. 

erected  by  agricultural  tenant,  not  removable,  167. 
BEDS.     See  Covering. 

BEER-PUMP, 

as  between  executor  and  heir,  under  N.  Y.  Statute,  313. 
BEES, 

qualified  property  in,  329. 

when  not  the  subject  of  larceny,  668. 

belong  to  land-owner,  83,  329. 

BELLOWS, 

pass  on  conveyance  of  land,  393. 
go  to  executor,  273. 


INDEX.  691 

[BEFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

BELLS, 

are  fixtures,  7,  46. 

not  removable  after  expiration  of  tenancy,  201. 

hung  in  steeple  of  church  become  the  property  of  the  church,  326, 

678. 
church  bell  not  subject  to  f..  fa.,  540. 
origin  of  bells  and  chimes,  326. 

a  factory  bell  passes  by  a  conveyance  of  the  realty,  394. 
otherwise  of  a  plantation  bell  temporarily  placed  upon  posts,  394. 

BELL-PULLS, 

pass  by  a  bequest  of  household  furniture,  475. 

BELL-ROPES, 

belong  to  church  wardens,  326. 

BELTING.     See  Mill-Saws,  Larceny. 

when  passes  with  the  realty  to  grantee,  391,  392,  436. 

parcel  of  the  freehold,  though  temporarily  severed,  46. 

trover  for,  648. 

mechanics'  lien  allowed  for,  427,  428. 

covered  by  insurance,  379. 

not  subject  to  levy,  537,  538,  539. 

is  constructively  annexed,  46, 

effect  of  connection  by,  436. 

BENCHES,  196,  265. 

BEQUESTS.     See  Devises. 

of  fixtures  is  a  constructive  severance,  66. 

BETTERMENTS.     See  Ejectment. 
what  are,  246. 

BILL  OF  LADING, 

for  severed  fixtures,'  rights  of  bona  fide  holder,  71. 

BILL  OF  SALE.     See  Seller  and  Buyer. 
as  evidence  of  intent,  57,  136. 
constructive  severance  by,  67,  68,  471. 
working  estoppel,  522. 

BILLS  OF  SALE  ACT.    See  Notice. 

BLEACHING-HOUSE.     See  Buildings. 

held  not  removable  as  a  trade  fixture,  147. 

BLINDS, 

when  pass  with  the  hou5o  to  the  gnintee,  455. 
pass  by  a  bequest  of  household  furiiiluro,  475. 

BLOWER, 

of  a  forge,  right  to  as  between  vendor  and  vendee,  etc.,  of  the  realty, 

381. 

blower-pipe  passen  undor  the  doscription  of  "fixrd  macliincry, "  46H. 


692  INDEX. 

[REFERENCES  ABE  TO  THB  BOTTOM  FAOES.] 

BOAT.     See  Ferry-Boat. 

not  constructively  annexed,  47. 

ancient,  embedded  in  soil,  belongs  to  landowner,  83. 

BODY.     See  Co/fin. 

human  being  not  a  fixture,  13. 
dead,  no  property  in,  325. 
dead,  when  buried,  not  removable,  119. 
dead,  does  not  pass  by  conveyance  of  land,  325. 
dead,  of  pigs,  when  buried,  are  subjects  of  larceny,  670. 
BOILER.     See  Mechanic's  Lien,  Ejectment,  Steam  Engine. 

of  steam-engine  annexed  to  land  under  agreement  as  to  its  removal, 

104,  115,  485. 
compensation  for  use  of,  106,  124. 
of  steam-engine,  when  removable  by  tenant,  140,  141,  146,  187,  204, 

238,  245. 
in  distillery,  removable  by  tenant,  140. 
steam-boiler  erected  by  agricultural   tenant,   held   to   be  a  chattel, 

178. 
in  a  green-house,  not  removable  by  tenant,  187. 
right  to  as  between  vendor  and  vendee,  mortgagor  and  mortgagee, 

etc.,  or  the  realty,  381,  387,  392,  395,  403,  433,  434,  438,  451, 

470. 
right  to  as  between  mortgagee  of  the  realty  and  a  chattel  mortgagee, 

418,  420. 
right  to  as  between  mechanic  claiming  a  lien  and  a  chattel  mort- 
gagee, 425. 
affixed  by  owner  of  freehold,  when  subject  to  fi.  fa.,  537,  538,  543. 
affixed  by  tenant,  subject  to  fi.  fa.,  544. 
occupier  of,  ratable,  580,  582. 
when  fixture  by  weight,  38. 
alieno  solo,  when  removable,  98. 
go  to  executor,  273. 
go  to   heir,   303. 

mechanics'  lien  allowed  for,  427,  428. 
covered  by  insurance,  379. 
how  taxable,   564. 
right  of  unpaid  seller,  105. 
BOLTING-CLOTH, 

replevin  for,  628. 

mechanics'  lien  allowed  for,  429. 

BOOK-CASES.     See  Cases. 

when  fixed  furniture,  7. 

do  not  pass  with  the  land,  447, 
BOOK-SHELVES.     See  Shelving. 

set  in  recess  in  wall  cut  to  receive  them,  held  to  be  fixed  to  the  free- 
hold, 456. 


INDEX.  693 

[REFEKENCES    ARE   TO  THE  BOTTOM    PAGES.] 
BOOM, 

taxable  as  realty,  559. 

is  realty  in  action  of  trespass,  639. 
BOEING-MACHINE.     See  Machinery. 

right  to  as  between  mortgagor  and  mortgagee,  etc.,  of  the  realty, 
438. 
BOUNDAKY.     See  Trees,  Hedge. 

when  fences  on,  are  removable,  87,  98. 

unwritten  partition  of  fence  on,  vaUd,  514. 

ownership  of  party  wall,  105. 

when  in  dispute,  removal  of  fences  or  crops  is  not  malicious,  674. 

BOWLING- AIJ.EY, 

removable  as  a  trade  fixture,  142. 
contra,  145. 

BOX.     See  Hedges,  Shrubs. 

planted  by  tenant,  may  not  be  removed  by  him,  163,  197. 

BRICK.     See  Building  Materials. 

laid  in  wall,  part  of  freehold,  85. 

land  in  wall,  part  of  freehold,  and  a  sale  of,  is  within  the  Statute 

of  Frauds,  515. 
when  pass  on  conveyance  of  land,  435,  459. 
made  on  government  land,  do  not  pass  with  the  land  to  the  grantee, 

434. 

BEICK-KILNS.    See  Kilns. 

removable  as  trade  fixtures,  150,  161. 

BRIDGE, 

materials  of  severed  by  wrong  doer,  113,  635. 

stone  piers  of,  revert  to  railway  company  on  abandonment  of  enter- 
prise,  117. 
when  removable  by  tenant,  144,   146,   168. 
damages  not  allowed  for  in  condemnation  proceedings,  89. 
how  taxable,  558,  562,  563. 
public,  does  not  belong  to  land  owner,  113. 
public,  does  not  pass  on  conveyance  of  land,  402. 
public,  not  trespass  to  fasten  boat  to,  636. 

BUCKETS, 

as  between  grantor  and  grantee  of  the  roalty,  433. 

BUILDING.     See  Dwellings,  Covenants  to  Repair,  Taxation,  Enginehousc, 
Poor-rates,  Public  Lands. 
a  wing  is,  within  Mnrhanic's  Lion  T>aw,  11. 
when  a  chattel  and  subject  to  attachment,  19. 
set  upon  blocks  on  U.  S.  land,  personalty,  19. 

set  upon  blocks  by  tenant,  personalty.  15.  10.  170,  15.3,  192,  195,  239. 
set  upon  blocks,  realty,  .59.  117.  119,  382,  413. 


694  INDEX. 

[references  abb  to  the  bottom  pages.] 

BUILDING,  continued— 

a  floating  dock,  not,  44. 

alieno  solo,  86  et  seq. 

on  piles  below  low  water  mark  of  navigable  river,  95. 

prima  facie  real  estate,  96,  102,  195,  513,  514. 

distinction  between  and  other  annexations,  106. 

annexed  to  the  land  of  another  with  his  consent,  103  et  seq. 

annexed  under  parol  agreement  for  its  purchase,  385. 

not  severed  from  realty  by  treating  it  as  personalty  in  the  instru- 
ment of  conveyance,  110. 

waste  to  pull  down,  127,  602,  607. 

distinction  taken  between  and  trade  fixtures,  147, 
contra,  148. 

when  removable  as  a  trade  fixture,  146,  148,  152,  176,  274. 

landlord  under  no  obligation  to  pay  for  buildings  erected  by  tenant 
on  the  demised  premises,  191,  217. 

erected  by  lessee  of  dowress  and  rented  for  stores  and  bed-rooms, 
not  removable,  192,  283. 

farm  buildings  erected  by  tenant  for  life,  not  removable,  274. 

tenant  entitled  to  use  of  during  the  term,  75,  195. 

erected  by  incumbent,  when  removable,  287,  289. 

when  passes  by  a  conveyance  of  the  land  on  which  situated,  393,  424, 
434. 

when  not  subject  to  distress,  549. 

wrongfully  severed  from  the  realty,  recoverable  in  replevin,  73,  620. 

constructively  severed  from  the  realty,  recoverable  in  replevin,  622. 

trover  for,  652. 

what  are  within  English  acts  as  to  larceny,  671,  672. 

what  is,  12,  525,  677. 

go  to  heir  or  remainderman,  263,  273,  274,  284,  311. 

pass  with  land  in  condemnation  proceedings,  380. 

when  mechanics'  lien  allowed,  429,  430. 

are  immovable  by  destination,  34. 

how  taxed,  557,  561,  563,  564. 

when  exempt,  71,  106,  539,  546,  559. 

not  subject  to  levy,  92,  537,  538. 

rights  of  vendee  of  land  under  contract,  59,  383. 

erected  by  partners,  92,  109,  110. 

removable,  is  not  personalty,  67,  106,  124,  379,  502,  546. 

removable,  is  insurable  as  realty,  223,  379. 

removable,  not  within  the  Statute  of  Frauds,  513. 

removable,  homestead  therein,  404. 

detinue  does  not  lie  for,  621. 

on  posts  or  blocks,  when  removable,  18,  98,  383,  422,  434. 

on  posts  or  blocks,  covered  by  covenant  to  leave  in  repair,  236. 

on  stone  pillars,  presumed  realty,  96. 


INDEX.  695 

[befebencgs  ab£  to  thb  bottom  pages.] 

BUILDING,  continued— 

on  stone  foundation,  when  not  realty,  620. 

presumptions  as  to,  11,  96,  147,  152. 

of  post  traders,  113. 

■what  is  evidence  that  it  is  movable,  107. 

contract  as  to  removal,  not  within  the  Staute  of  Frauds,  109. 

injunction  against  removal,  does  not  involve  title  to  realty,  605. 

insurance  of,  implied  warranty  of  title  to  land,  398. 

carries  land  under  it,  397,  425,  473,  565,  659. 

removal  of,  from  mortgaged  land,  71,  73,  616,  619. 

severance,  what  is,  66,  67,  623. 

severance,  starting  from  its  place,  is,  65. 

severance,  effect,  71,  75. 

limitation  to  rule  making  it  a  chattel  by  agreement,  34, 

not  covered  by  chattel  mortgage  of  personalty,  13. 

chattel  mortgage  of,  operates  as  mortgage  of  realty,  35. 

when  a  fixture  by  weight,  38. 

effect  of  failure  to  remove  by  certain  day,  68. 

removable  by  tenant,  land  is  not  "improved,"  477. 

second  floor  of,  is  land,  586. 

third  story  for  life  of,  walls  become  property  of  land-owner  after 
fire,  82. 
BUILDING  MATERIALS.     See  Lumber,  BricTc. 

when  exempt    from  seizure  on  attachment,  539. 

sale  of,  within  Statute  of  Frauds,  515. 

trustee  in  bankruptcy  entitled  to,  508. 
BUILDING  RESTRICTION.     See  Eestriction. 

what  is  a  violation  of,  11. 

BURGLARY, 

rule  that  fixtures  are  a  part  of  the  realty  relaxed  in  respect  of,  676. 

a  distinction  to  be  niade  in  respect  to  cupboards,   presses,   lockers, 
etc.,  in  favor  of  life,  676. 

what  a  sufficient  breaking,  677. 
BURIAL.     See  Body. 
BURIED  ARTICLES.     See  Accession. 

belong  to  land-owner,  83. 
BUYER.     See  Seller  and  Buyer,  Grantor  and  Grantee. 

CABIN.     See  Building. 

waste  to  remove,  310. 
CALENDER, 

quaere  as  to  whether  removable  as  a  trade  fixture,  152. 

calendor-rollH   ri^lit    to    as   bctwcon    mortgagor   and    mortgagee,   438. 

calender-rolls  right  to  as  between  grantor  and  grantee,  392. 
CAMP, 

no  presumption  that  it  is  not  a  part  of  the  land,  96. 


696  INDEX. 

[REFKltENCES    ARE    TO   THE    BOTTOM    PAGES.] 

CAEDINCt  machines.     See  Settlement,  Machinery. 
not  fixed  to  the  land  are  chattels,  16,  20. 
when  subject  to  fi.  fa.,  539,  543. 
not  subject  to  a  mechanics'  lien,  426. 

whether  they  pass  to  the  grantee  with  the  realty,  442,  443,  465. 
whether  ratable  to  the  poor,  575. 

CARPENTER-SHOP.     See  Building. 

removable  as  a  trade  fixture,  148,  161. 

removable  contra  where  erected  by  agricultural  tenant,   167. 

when  passes  under  a  mortgage  sale,  445. 
CARPETS.     See  Oil  Cloth. 

not  fixtures,  45,  308,  447. 

do  not  pass  with  the  land,  447. 

quaere  whether  fixed  furniture,  476. 
CARS.     See  Boiling  StocTc. 

mechanics'  lien  allowed  for,  427,  430. 

of  electric  railway,  taxable  as  realty,  562. 

CART-HOUSE.     See  Buildings. 

erected  by  tenant  in  agriculture,  not  removable,  167. 

CASE.     See  Furniture. 

is  trade  fixture,  141. 

not  pass  to  grantee  of  realty,  434. 

not  pass  with  lease,  404. 

of  stuffed  birds,  not  go  to  remainderman,  278, 

CASE  IN  THE  NATURE  OF  WASTE.     See  Action,  Waste. 

CASING, 

of  oil-well,  is  a  trade  fixture,  140. 

CASKS.     See  Tanks,  Tubs,  Vats. 

not  constructively  annexed,  47. 

when  fixtures  by  weight,  38. 

when  pass  to  grantee  of  realty,  434,  456. 

CAULDRONS, 

exempt  from  distress,  552. 
CHAIN, 

not  a  fixture,  419. 

when  pass  to  grantee  of  realty,  24. 

subject  to  levy,  543. 

annexation  by.     See  Ferry  Boat. 

CHAIRS.     See  Stools,  Opera  Chairs. 

not  an  addition,  alteration  or  improvement,  241. 

when  trade  fixture,  141. 

when  pass  on  conveyance  of  the  realty,  395,  437,  447,  452,  485. 

mechanics'  lien  allowed  for,  429. 


llsDEX.  697 

[BEFEBENCES  AEB  TO  THB  BOTTOil  PAGES.] 

CHAMBERS, 

used  in  making  sulphuric  acid,  as  increasing  the  ratable  value  of 
the  realty,  574. 

CHANDELIEES.     See  Gas  Fixtures. 
pass  to  grantee  of  realty,  390. 
mechanics'  lien  allowed  for    429 
subject  to  larceny,  670. 

CHAETERS, 

pass  with  the  land  to  the  heir,  or  alienee,  315. 

when  executor  entitled  to  possession  of,  315. 

are  forfeited,  if  the  land  is  forfeited,  315. 

not  goods  and  chattels,  316. 

but  trover,  detinue  or  trespass  de  bonis  may  be  brought  therefor, 
316. 

80,  as  to  replevin,  625. 

when  the  box  containing  them  passes  to  the  heir,  316,  317. 

not   the   subject   of   larceny,   316. 

not  the  subject  of  distress,  316,  549. 

but  charters  relating  to  personalty  pass  to  executor,  317. 

so,  when  pledged  they  are  chattels  in  respect  of  the  creditor,  317. 
CHATTEL  MORTGAGE.     See  Bill  of  Sale,  Mortgage. 

CHATTEL  REAL, 

when  a  building  is,  35,  95,  124,  502. 

must  be  mortgaged  as  realty,  502. 
CHATTELS.     See  Personal  Property. 

are  not  fixtures,  13. 

what  recoverable  in  trespass  for  taking,  637. 

CHEEK-POSTS, 

waste  to  remove,  127,  188. 
CHIMNEY.    See  Smokestack. 

removable  by  tenant,   150, 

removable  by  tenant,  see,  however,  152. 

trover  for,  648. 

iron  backs  to,  removable  by  tenant  for  life,  276. 

iron  backs  to,  when  pass  to  executor  of  incumbent,  2S6. 

iron  backs  to,  when  pass  to  executor  of  incumbent,  as  against  the 
heir,  301. 
CHIMNEY-GLASSES, 

held   to  be  furniture,  447. 

removable  by  tcnart  for  life,  279. 

do  not  paFS  to  the  grantee  with  the  land,  447. 
CHIMNEY-PIECES, 

removable,  if  ornamental,  189,  2r)(). 

held  not  to  pass  by  a  bequest  of  furniture,  476. 

not  subject  to  distress,  550. 


698  INDEX. 

[KEFEBENCES  ARE  TO  THE  BOTTOU  PAO&S.] 

CHURCH.     See  Buildings,  Organ. 

annexations  to  freehold  of,  324. 
CIDER-MILL.    See  Buildings,  Mill 

removable  by  tenant,  152,  159,  169. 

the  case  of  the  cider  mill,  decided  by  Comyns,  C.  B.,  159,  272,  301. 

the  case  of  the  cider  mill,  doubted  and  overruled,  159,  302,  306,  391. 

and  press  pass  to  grantee  with  the  realty,  391. 

portions   of,   as   the   sweep,   trough,   etc.,    pass,   though   temporarily 
severed,  457. 
CISTERNS, 

in  oil  refinery  removable  by  tenant,  140. 

in  oil  refinery  included  in  term  ' '  erections, ' '  246. 

in  a  tavern  and  boarding-house  removable  by  tenant,  165. 

when  passes  by  a  conveyance  of  the  land,  396,  424,  456. 
CIVIL  LAW.     See  Foman  Civil  Law,  French  Law. 

columns  and  statues  under,  40. 

in  erections  alieno  solo,  77  et  seq. 

poacher  not  required  to  restore  game,  328. 
CLAPBOARD-MACHINES.     See  Machinery. 

pass  with  the  land  on  execution  sale,  402. 

CLOCK.     See  Furniture. 

whether  one  will  pass  by  a  bequest  of  household  goods,  476. 

not  an  alteration,  11. 

is  constructively  annexed,  46. 

passes  to  grantee  of  realty,  453. 
CLOSET.     See  Water-Closet. 

removable  as  a  trade  fixture,  143. 

CLOVER, 

whether  the  subject  of  emblements,  334,  338. 

COAL.     See  Fuel. 

subject  to  levy,  541. 

COALrBINS, 

removable  as  trade  fixtures,  143. 

COAT-ARMOR,  320,  324. 

COFFIN.     See  Body. 

property  in,  325,  625. 

after  interment,  not  subject  to  replevin,  325,  625. 

subject  to  larceny,  325. 
COKE-OVENS.    See  Ovens. 

are  trade  fixtures,  149. 

COLD  STORAGE  ROOM, 

removable  as  trade  fixture,  142. 

COLLAR  OF  S.  S., 

said  to  be  in  the  nature  of  an  heir-loom,  320. 


INDEX.  699 

[REFERENCES  ABB  TO  THB  BOTTOM  PAGES.] 

COLLECTOR'S  BOND.     See  Lien. 

COLUMNS, 

not  removable  by  tenant,  146. 

COMMISSION.     See  Larceny. 

COMMUNITY.     See  Husband  and  Wife. 

CONDEMNATION  PROCEEDINGS, 

rule  between  grantor  and  grantee  prevails,  379. 

what  passes  as  part  of  the  land,  380. 

tenant  has  right  to  remove  fixtures,  481. 

railway  company  acquires  lessor's  right  to   purchase  tenant's  im- 
provements, 534. 

compensation  to  be  allowed  tenant,  for  buildings  erected  by  him, 
196,  224,  530. 

remainderman  not  entitled  to  compensation  for  building  erected  with 
consent  of  life-tenant,  89. 

by  railway  company,  whether  compensation  allowed  for  fixtures  pre- 
viously annexed  by  them,  88. 

compensation  not  allowed  for  a  school-house  previously  built,  89. 

effect  of  delay,  117. 

CONDITION, 

effect  of  non-performance,  218,  227,  229,  230. 

may  be  waived,  230. 

violation  of,  must  be  shown,  265. 

purchaser  of  leasehold  subject  to,  229. 

when  broken,  right  to  fixtures  of  grantor  re-entering,  265,  383,  384. 

unperformed,  creates  no  estoppel,  520. 
CONDITIONAL  SALE.     See  Seller  and  Buyer. 
CONFLICT  OF  LAWS,  417,  487. 
CONFUSION  OF  GOODS.    See  Accession,  Manure. 

CONIES, 

when  pass  to  the  heir,  329. 
when  pass  to  the  executor,  330. 

CONSERVATORIES, 

erected  by  tenants,  when  removable,  186,  187,  188. 
removable  by  incumbent,  287,  290. 

CONSIDERATION, 

none,  for  promise  of  hindowner  to  pay  for  improvements  made  by 

adverse  possessor,  79, 
none,  for  permission  to  remove  a  building  erected  upon  land   of  a 

person   undor  clisability,   94. 
none,  for  promise  aftor  Hurrcnder,  to  allow  removal  of  fixtures,  226. 
for  improvements  on  public  land,  95. 
for  improvomentfl  on  lands  of  others,  514. 
CONSTRUCTIVE  ANNEXATION.     Soo  Anvrrntinv. 


700  INDEX. 

[references  are  to  the  bottom  pages.] 

CONSTRUCTIVE  SEVERANCE.     See  Severance. 

CONTRACT.     See  Agreement. 

CONVERSION.     See  Trover. 

COOLERS, 

in  distillery,  removable  by  tenant,  140. 
■when  subject  to  distress,  551. 

COPPERS, 

are  removable  by  a  tenant,  139. 

may  be  seized  on  fi.  fa.  against  tenant,  133. 

as  between  heir  and  executor,  300. 

not  goods  and  chattels  within  bankrupt  act,  504. 

in  paper-mill  not  subject  to  extent,  538. 

when  not  subject  to  distress,  552. 
COPYING-PRESS.     See  Press. 

is  a  trade-fixture,  143. 
CORN-CRIB.    See  Buildings. 

erected  by  tenant  for  life  of  a  farm,  not  removable,  171. 

erected  by  tenant  for  life  of  a  farm,  see,  however,  176. 

quaere  as  to  whether  a  corn-crib  is  not  accessory  to  a  trade,  176. 
CORN-CRUSHER.     See  Machinery. 

passes  with  land  to  grantee,  392. 
CORNICE, 

fixed  by  tenant,  question  as  to  whether  merely  matter  of  ornament 
and  removable  without  injuring  house,  etc.,  left  to  jury,   155, 
187. 
CORNICE  POLES, 

pass  to  grantee  of  realty,  452. 
CORPORATION, 

annexations  by  stockholder  to  building  owned  by,  37. 
CORPSE.     See  Body. 
COTTON-GIN, 

house  for,  an  immovable  in  Louisiana,  34. 

running-gear  of,  a  fixture  passing  to  the  heir,  304. 

when  passes  on  a  conveyance  of  the  realty,  391,  434,  444, 

not  severed  by  giving  a  delivery  bond,  65. 

removable  by  tenant,  178. 

goes  to  executor,  273. 

detaching  running-gear  of,  is  waste,  265. 

reservation  of,  is  not  within  the  Statute  of  Frauds,  516. 

COTTON-PRESS.     See  Press. 

not  covered  by  mortgage  of  land,  419, 

of  tenant,  not  subject  to  levy,  545. 
COUNTERS.     See  Bar. 

interest  of  tenant  in,  when  severed  from  the  demised  premises,  76. 


INDEX.  701 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

COUNTEES,   continued- 
oyster  and  trench  counter,  realty  while  annexed,  125. 
when  removable  as  trade  fixtures,  142,  146,  197. 
when  trover  lies  for,  650. 
when  pass  by  a  conveyance  of  the  realty,  394,  436. 

COUNTING-KOOM.    See  Offlce. 
replevin  for,  625. 

COUKT.     See  Question  of  Law. 
COVENANT.    See  Actions. 
COVENANTS.     See  Warranty. 

not  presumed  in  lease  not  printed,  259. 

against  alteration,  what  not  a  violation  of,  11. 

against  removal,  what  not  violation,  233. 

against  underletting,  assignment  of  lease  is  not,  231. 

to  pay  for  improvements,  when  binding  upon  assignee  of  lessor,  527. 

to  repair,  effect  of  upon  tenant's  right  of  removing  fixtures,  233 

et  seq. 
to  repair,  effect  of  a  matter  of  interpretation  depending  on  facts  of 

individual  case,  etc.,  233. 
covenant   to   repair   generally   construed    to   relate  only   to   articles 

annexed  at  time  of  demise,  234. 
cases  on  the  subject,  234  et  seq. 
carrying  away  a  shelf,  a  breach  of,  234. 
may  prohibit  removal  of  subsequent  erections  where  such  appears  to 

be  the  intention,  235. 
question  sometimes  turns  upon  what  are  repairs,  236. 
cases  on  the  subject  considered,  236. 
covenant  to  repair  and  to  yield  up,  etc.,  the  demised  premises  and 

subsequent  erections,  238  et  seq. 
includes  trade  buildings  fixed  to  the  soil,  239. 
but  not  trade  buildings  not  let  into  the  ground,  239. 
quaere  as  to  last  point,  240. 
does  not  in  general  include  mere  chattels,  240. 
does  not  in  general  include  trade  fixtures,   242. 
not  a  breach   of,   to   remove  fixtures  not   immediately   restored,  but 

capable  of  restoration  before  end  of  terra,  248. 
construction    of   sometimes   determined   upon   the   principle   cjusdcm 

qeneris,  248  et  seq. 
of  title,  not  broken  by  purchasing  tenant's  crops,  482. 
of  warranty,  when  broken,  484,  660. 
COVERING, 

to  billiard  table,  82. 

to  be<ls,  as  between  heir  and  executor,  298. 
COVEETTTRK.     See  Jhinhnnd  and  Wife. 

disability  of  with  reference  to  annexations  alieno  solo,  94. 


702  INDEX. 

[REFEBKNCK3  ABE  TO  THE  BOTTOM  PAGES.] 

CRANES, 

when  pass  with  the  realty  to  the  grantee,  390,  393,  466. 
aflixed  by  owner  of  freehold,  not  subject  to  /i.  fa.,  537. 
ratable  value  of  the  realty  as  affected  by  annexation  of,  574,  578. 
how  taxed,  564. 

CREDITORS.    See  Execution,  Lien. 
CRITERIA,     See  Tests. 

CROPS,     See  Emblements. 

planted  alieno  solo,  99. 

planted  alieno  solo,  may  retain  character  of  personalty  if  so  agreed, 

119. 
as  between  parties  not  owning  the  land,  99. 
distinguished  from  emblements,  335. 
planted  alieno  solo,  rule  of  civil  law  as  to,  79. 
are  not  personal  property,  369. 
reserved  in  deed,  not  personal  property,  67. 
are  goods  and  chattels,  364. 
are  movables,  as  to  a  privilege  for  supplies,  366. 
partition  of,  is  a  partition  of  personal  property,  372. 
include  vegetables,  482. 
fruit,  338. 
trees  are  not,  559. 
alfalfa  is  not,  559. 

severance  by  sheriff,  does  not  change  character,  64,  342. 
when  not  pass  with  land,  349. 
not  pass  to  one  with  notice,  479 

agricultural  lien  on,  superior  to  right  of  grantee  of  land,  343,  480. 
mature  crops,  when  not  part  of  the  realty,  347,  350,  365, 
planted  between  execution  sale  of  land  and  receipt  of  deed,  right  to, 

342,  345,  347. 
as  between  vendor  and  vendee  of  land  under  contract,  344. 
go  with  land  on  partition,  340,  346. 
covered  by  lien  on  land,  342,  343,  344. 
pass  with  lease  of  land,  340. 

right  to,  of  mortgagee  in  possession  of  land,  345, 
as  between  holder  of  particular  estate  and  remainderman,  353. 
rights  of  under-lessee,   347. 
rights  of  licensee,  346. 

landlord  entitled  to  on  tenant's  abandonment,  371, 
mortgage  of,  without  writing,  is  valid,  368,  371, 
constructive  severance  of,  66,  67. 

subject  to  levy  if  conveyance  of  land  is  fraudulent,  362. 
when  have  a  potential  existence,  367. 
to  be  grown,  when  chattel  mortgage  of  is  valid,  367,  368. 
on  homestead,  exempt,  365. 
replevin  lies  for,  369,  370. 


INDEX.  703 

[BEFEEENCES  ABE  TO  THE  BOTTOM  PAGES.] 

CROPS,  continued- 
right  to,  on  disaffirmance  of  lease  by  ward,  358. 
judicial  notice  as  to,  350,  368,  370. 
when  a  specific  legacy,  351. 
measure  of  damages  for  destruction  of,  641. 

CROWN  JEWELS. 

are  heir-looms,  235,  318,  321. 

CRYSTAL  PALACE,  235. 

CULM, 

•when  mined  is  personal  property,  480. 

CUPBOARD.     See  Burglary,  Cases. 

when  removable  as  a  trade  fixture,   143,  145,   146. 

removable  as  a  domestic  fixture,  197. 

when  annexation  of  confers  settlement,  586. 

passes  to  heir  if  aflBLxed  to  the  freehold,  300. 

when  passes  to  the  grantee  of  the  realty,  450. 
CUPOLA, 

passes  to  grantee  of  land,  395. 

in  manufactory  afl&xed  by  owner  of  freehold,  not  subject  to  fi.  fa., 
537. 

CURBING, 

passes  with  land,  396. 

CURTAINS, 

not  fixtures,  308. 

when  pass  with  the  land,  395,  447. 

mechanics'  lien  allowed  for,  429. 
CURTESY.     See  Tenant  for  Life. 
CUSTOM.    See  Emblements. 

ground  of  decision  in  Culling  v.  Tuffnal,  15. 

in  Milwaukee  to  consider  buildings  erected  on  blocks,  etc.,  by  tenant* 
as  personalty,  59,  166. 

in    Washington   to    consider   buildings   erected    on    blocks,    etc.,    by 
tenants  as  personalty,  165. 

influence  of,  in  cases  of  erections  alieno  snln,  98, 

influence  of,  in  cases  of  tenant's  fixtures,  165. 

may  be  established  by  parol  testimony,  166. 

not  applicable  whore  there  is  a  contract  ai.i)li<';iblo  to  the  point   in 
controversy,  166. 

right  to  manure  as  between  landlord  and  tenant,  affected  by,  184. 

right  to  fixtures  as  liotwoon  heir  and  executor,  influenced  by,  310. 

heir-looms  duo  by.  .118,  .-{19,   3L'3. 

as  an"c(ting  the   law  of  rmblcnifntH,  :\r,:\,  3r)4. 

when  not  ndmissiblo  to  nltrr  meaning  of  the  words  in  n  deed,  461. 

usage  of  trade,   influence  of  upon   questions  of   reputed   ownership, 
509. 


704  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

CUSTOM,  continued— 

in  Hawaii,  to  remove  liouse-frame,  311. 

right  under,  lost  by  delay,  165. 
DAIRY-HOUSE.    See  Buildings. 

removable  as  a  trade  fixture,  148,  161. 
DAMAGE.    See  Measure  of  Damages,  Injury,  Injunction. 

to  freehold  in  removing  fixtures,  154. 
DEAD  BODY.    See  Body,  Coffin. 
DECAY.     See  Severance. 
DECLARATION.     See  Pleading  and  Practice. 
DEED.     See  Charters. 

DEER.    See  Game. 

when  pass  to  the  heir,  328. 

tame  and  reclaimed,  go  to  personal  representatives,  329, 

waste  may  be  committed  in  respect  of,  331. 

when  not  subject  to  distress,  549. 
DEFINITIONS.     See  Meaning,  1  et  seq. 

DELAY, 

effect  of,  on  right  to  fixtures,  84,  117,  165,  208,  214,  224,  538,  617. 

DEODANDS, 

origin  of,  679. 

fixed  property  formerly  the  subject  of,  678. 

otherwise  by  later  authorities,  unless  the  thing  was  severed  before 

the  accident  happened,  678. 
examples,  678,  679. 
abolished  by  statute,  678. 

DERRICK, 

occupier  of  floating  derrick,  when  ratable,  571. 

attached  to  freehold,  not  an  allowable  deduction,  574. 

passes  with  land,  395. 

is  trade-fixture,  140,  144. 

how  taxable,  564. 
DESK.     See  Office  Furniture. 

passes  with  land,  396. 

DESTINATION.     See  Immovalles. 
DETINUE.    See  Action. 

DEVISES.    See  Tenants  for  Life  and  in  Tail,  Furniture,  Legacy,  Bequest. 
fixtures  pass  by  devise  of  land,  473,  476. 

testamentary  disposition  of  fixtures  separately  from  the  land,  474. 
testamentary  disposition  of  furniture,  etc.,  475,  476. 
intention  to  dispose  of  fixtures  separately  from  the  freehold,  how 

evidenced,  475. 
of  plant  in  a  brew-house,  476. 


INDEX.  705 

[REFERENCES  ARH  TO  THH  BOTTOM  PA0E3.] 

DEVISES,  continued— 

what  passes  under  the  -words  ' '  effects  belonging  to  the  business  ' ' 
477. 

what  passes  by  the  devise  of  a  plantation  by  name,  477. 

of  land  pass  growing  grass,  334. 

of  land  not  pass  trees  severed  by  wind,  474. 

of  building  passes  land,  397,  473. 

right  of  tenant  to  fixtures,   204. 

void,  improvements  do  not  pass,  474. 

of  ' '  unimproved ' '  land  passes  land  upon  which  are  buildings  owned 
by  third  parties,  477. 

devisees  in  remainder  are  not  bound  by  agreement  of  life  tenant, 
524. 

executory  devisee,  whom  can  he  have  enjoined  against  waste,  606. 
DILAPIDATION.    See  Ecclesiastical  Persons. 

defined,  289. 

considered  in  Martin  v.  Roe,  290. 

not  dilapidation  to  remove  hot-houses,  pineries,  etc.,  290. 

principle  of  estimating  compensation  for,  291. 

remedy  for,  292,  293. 
DISABILITY.     See  Infancy,  Guardian  and  Ward,  Husband  and  Wife. 

of  landowner,  effect  on  right  to  remove  building,  94. 

no    consideration    after   removal   of,    for    agreement    as   to    articles 
annexed  before,  94. 
DISCLAIMER.    See  Bankruptcy. 
DISHES.    See  Accession. 

buried,  belong  to  landowner,  83. 

DISTILLERY, 

fixtures  belonging  to,  removable  by  tenant,  140. 

DISTINCTION, 

between  fixtures  and  improvements,  247. 
between  emblements  and  growing  crops,  335. 

DISTRESS, 

fixtures  not  subject  to,  549. 

of  fixtures,  dicta  in  Year  Books  concerning,  298. 

charters  not  subject  to,  316,  549. 

growing  crops  not  subject  to,  till  11  Geo.  II.,  364,  550. 

Stat.  11  Geo.   IL,  eh.  19,  conBtrucd,  365,  550. 

reason   of  rule  as  to  exemption   of  fixtviros,  etc.,   549,   552  ct  scq. 

when   receipt  of  proceeds  of,  docs  not  make  lainllnrd   a   trespasser, 

549. 
things  constnictively  annexed  to  tho  realty,  exempt  from,  551. 
things  temporarily  severed  exempt   from,  551. 
otherwise,   if  permanently  scverrd,   551. 
instances  of  fixtures  held  exempt  from,  551,  552. 
4S 


TOG  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

DISTRESS,  continued- 
privilege  of  oxomjition  may  be  waived,  556. 
trover  against  landlord  for  distress  of  fixtures,  643. 

DISUSED  BURIAL  GROUNDS  ACT,  ENGLAND, 
what  is  a  buikling  within,  11. 

DOCK.     See  Pry  Bock,  Floating  Dock,  Pier,  Wharf. 
is  a  fixture  or  erection,  10,  526. 

DOLPHIN, 

attached  to  the  freehold,  not  an  allowable  deduction  from  the  ratable 
value,  574. 
DOMESTIC  FIXTURES.     See  Ornaviental  and  Domestic  Fixtures,  Mixed 

Cases. 
DOORS.     See  Furnace,  Vault. 

parcel  of  freehold  and  go  with  the  house,  45,  394,  453. 

of  a  pew,  97. 

■waste  to  remove,  127,  188,  265. 

as  between  heir  and  executor,  298,  300,  456. 

as  between  grantor  and  grantee,  394,  452. 

not  devisable  by  tenant  for  life  or  in  tail,  474. 

not  goods  and  chattels  within  bankrupt  law,  511. 

not  subject  to  distress,  551. 

not  subject  of  deodand,  679. 

not  subject  of  larceny,  670. 

constructively  annexed,  45. 

not  an  addition,  but  an  alteration,  10. 

not  removable  by  tenant,  146,  197. 

mechanics'  lien  allowed  for,  429. 

right  of  seller  on  condition  against  mortgagee  of  land,  105. 

DOVECOTE, 

destruction  of,  waste,  126,  604. 

injunction  to  prevent  removal  of,  604. 
DOVES, 

when  pass  to  the  heir,  329. 

waste  may  be  committed  in  respect  of,  331. 
DOWER.    See  Emblements,  Tenant  for  Life. 

water-wheel  subject  to,  297, 

wharf  subject  to,  297. 
DRAIN-PIPE.     See  Pipes. 

mechanics'  lien  allowed  for,  431. 

DRAWERS, 

in  a  drug  store,  interest  of  tenant  in  when  severed,  76. 
case  of,  when  considered  as  furniture,  81,  125,  650, 
removable  after  end  of  tenancy,  201. 
pass  by  a  conveyance  of  the  realty,  394. 
sale  of,  within  Statute  of  Frauds,  515. 


INDEX.  707 

[befebexces  abb  to  the  bottom  pages.] 

DRILL, 

passes  with  land,  395. 
DRILLING-MACHINE.     See  Machinery. 

when  passes  to  mortgagee  of  the  realty,  445. 

held  subject  to  fi.  fa.,  543. 
DRY-DOCK, 

is  land,  12. 

not  subject  to  salvage,  44. 

DRY-HOUSE.     See  Buildings. 

quaere  as  to  being  removable  as  a  trade  fixture,  152. 

DUPLICATE  MACHINERY, 

is  constructively  annexed,   24,  46. 

passes  with  land,  392. 
DUTCH  BARNS.    See  Buildings. 

removable  by  tenant,  149. 

not  buildings  within  covenant  to  repair  buildings,  236. 
DWELLING-HOUSES.     See  Buildings. 

set  on  blocks  and  rollers  by  tenant,  personalty,  19,  192. 

set  on  blocks  and  rollers  by  tenant,  see,  however,  59,  117. 

are  immovables  in  Louisiana,  34. 

set  on  blocks,  etc.,  by  vendee,  realty,  59. 

built  by  son  on  land  of  his  father,  118. 

generally  not  removable,  161,  170. 

not  accessories  to  a  trade,  and  not  removable  by  tenant,  175,  192. 

a  levy   on,    without   also   levying   on   tenant's   leasehold   interest  is 
irregular,  548. 
DYE-HOUSE.    See  Buildings. 

held  not  removable  as  a  trade  fixture,  147. 

right  to,  as  between  tenants-in-common,  380. 
DYNAMO.     See  Electric  Fixtures. 

not  an  erection  or  addition,  241. 

is  trade-fixture,  143. 

when  passes  with  land,  396,  449. 

not  subject  to  levy,  538. 

how   taxable,   564. 

EASEMENT, 

may  be  acquired  in  a  building  which  is  personal  property,   124. 

ECCLESIASTICAL  PERSONS.     See  Dilapidation. 

claims  between,  and   their  successors  in   respect  of  fixtures,   similar 

to  those  between  tenant  for  life  and  remainderman,  285,  286. 
what  passes  to  executors  of,  286. 
may  remove  mere  ornampntal  fixtures,  286. 
ornaments    of    bishop's    rhnpol    are    in    nature    of    hcir-looms,    and 

merely  in  succession,  287. 


708  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

ECCLESIASTICAL  PEKSONS,  contiimecl— 

hot-houses,  pineries,  conservatories,  etc.,  removable,  287 

other  buildings,  when  removable,  289, 

trade  fixtures  not  removable  by,  289. 
EFFECTS.    See  Devises. 
EJECTMENT.     See  Action. 
EJIJSDEM  GENEKIS,  248,  251,  465. 
ELECTORS, 

qualifications  of,  as  respects  annexation  to  the  freehold,  15,  586. 

right  to  vote  conferred  by  holding  a  wind-mill,  587, 

ELECTRIC  APPARATUS, 

not  pass  by  conveyance  of  the  realty,  437. 
mechanics'  lien  allowed  for,  429. 

ELECTRIC  FAN, 

not  pass  by  conveyance  of  the  realty,  437. 
ELECTRIC  FIXTURES.     See  Dynamos,  Switchboard. 

pass  by  conveyance  of  the  realty,  390,  396. 

not  subject  to  levy  as  chattels,  538, 

ELECTRIC  LIGHT  APPARATUS, 
is  a  trade  fixture,  143. 

ELECTRIC  LIGHT  FIXTURES.     See  Dynamos. 

do  not  pass  with  on  conveyance  of  the  land,  449. 

ELECTRIC  LIGHT  MACHINERY.     See  Machinery,  Dynamos. 
is  subject  to  levy,  543. 

ELECTRIC  LIGHT  PLANT.     See  Dynamos,  397. 
when  not  an  "addition,"  11. 

ELECTRIC  RAILWAY.     See  Railway,  Tramway,  Street. 
passes  by  conveyance  of  the  land,  463. 
how  taxed,  562. 

ELECTRIC  WIRES.    See  Wires,  Telegraph,  Telephone,  Poles,  Posts,  Street. 
in  street,  how  taxed,  560. 

ELEVATOR.    See  Buildings. 

passes  by  conveyance  of  realty,  393. 

mechanics'  lien  allowed  for,  429. 

not  removable  by  tenant,  187. 

removal  of,  is  waste,  127. 

not  a  fixture  as  between  seller  and  buyer,  452. 

is  an  "  addition,  "10. 

EMBLEMENTS.     See  Trespass,  Statute  of  Frauds,  Ejectment,  Crops. 
what  are  emblements,  335. 
distinguished  from  growing  crops,  335. 
reason  of  the  rule  as  to,  335,  339,  356. 


INDEX.  709 

[BEFERENCES  ABE  TO  THE  BOTTOM  PAGES.] 

EMBLEMENTS,  continued— 

the  doctrine  of,  extends  to  everything  produced  annually  by  labor, 

cultivation  and  manurance,  335. 
the  doctrine  of,  does  not  include  crop  which  is  not  gathered  within 

the  year  in  which  the  labor  is  bestowed,  338. 
the  doctrine  of,  does  not  include  crop  which  is  not  gathered  within 

the  year  in  which  the  labor  is  bestowed,  nor  more  than  a  single 

crop,  338. 
no  difference  in  degrees  of  liberality  in  application  of  rule  as  to, 

338. 
are  chattels  for  most  purposes,  339,  369. 
pass  to  personal  representatives  as  against  the  heir,  339. 
pass  by  a  conveyance,  mortgage,  etc.,  of  the  land,  339,  341,  349. 
bound  by  statutory  lien  on  land  for  ancestor's  debts,  347. 
parol  reservation  of,  void,  340. 

meaning  of  the  term  "growing  crops,"   349,   368. 
pass  with  the  land  to  devisee  if  no  contrary  intention  appears,  350. 
what  words  in  a  will  sufficient  to  pass,  351. 
dowress  entitled  to  crops  growing  on  the  land  assigned,  351. 
crops  growing  on  land  of  joint  tenants  pass  to  survivor,  352. 
who  entitled  to  the  privilege  of,  352. 

interest  of  tenant  in  land  must  be  uncertain  as  to  duration,  352. 
rule  as  to,  influenced  by  custom,  353. 

personal  representative  of  tenant  for  life  entitled  to,  354. 
personal  representative  of  baron  seized  in  right  of  his  wife,  355. 
husband  of  tenant  for  life,  when  entitled  to,  355. 
personal   representatives  of  tenant   for  years  si  tamdiu  vixcrit   en- 
titled to,  355. 
under-tenant  of  lessee  for  life,  when  entitled  to,  355. 
since  the  Statute  of  Merton,  personal  representatives  of  tenant  in 

dower  entitled  to,  356. 
personal  representatives  of  tenant  by  curtesy  entitle"!   to,   356. 
where  the  reason  of  industry  and  charge  fails,  not  entitled  to,  356. 
right  to,  does  not  obtain  till  seed  sown,  357. 

personal  representatives  of  incumbent  of  benefice,  entitled  to,  357. 
parson  resigning  his  living  not  entitled  to,  294,  357. 
tenant  at  will  entitled  to,  357. 
tenant  at  sufferance  not  entitled  to,  353. 

tenant  entitled  to,  where  lease  is  determined  by  landlord,  358. 
but  not  where  by  his  own  act  or  default,  358,  360. 
husband  not  entitled  to  when  bis  estate  is  determined  by  divorce  for 

misconduct,  358. 
tenant  no  right   to,   ;is  against  one  claiming  by  title  paramount  to 

that  of  his  landior.i,  314.  360. 
disseisee,  when  entitled  to  crop,  360. 
right  to,  as  between  plaintiff  and  defendant  in  ejectment.  .161,  .163. 


710  INDEX. 

[BEFEKENCKS  AUK  TO  TUB  BOTTOM  PAGES.] 

EMBLEMENTS,  continuetl— 

party  entitled  to,  also  entitled  to  "free  entry,  egress  and  regress," 

etc.,  363. 
right  of  entry,  etc.,  should  be  exercised  within  a  reasonable  time, 

363. 
frucius  industriales,  subject  to  fi.  fa.,  364. 
fructus  industriales,  subject  to  distress  by  statute,  364. 
fructus  industriales,  may   bo   sold,    mortgaged,   etc.,   as   chattels,   if 

the  crop  is  in  existence,  365. 
fructus  industriales,  how  delivered  on  sale,  366. 
fructus  industriales,  pass  to  assignee  in  bankruptcy,  369. 
fructus  industriales,  are  chattels  within  registry  laws,  370. 
fructus  industriales,  not  goods  and  chattels  within  the  statute  con- 
cerning fraudulent  conveyances,  etc.,  372. 
EMERY-MACHINES.     See  Machinery. 

not  fixtures,  381. 
EMINENT  DOMAIN.     See  Condemnation  Proceedings. 
EMBANKMENT.     See  Railway,  397. 
ENGINES.    See  Steam-Engines,  Portaile  Engine,  Gas  Engine,  Fire  Engine. 

ENGINE-HOUSE.     See  Buildings. 

held  not  removable  as  a  trade  fixture,  147. 

held  contra,  149,  150,  155,  270. 

and  engine  therein,  how  rated  to  the  poor,  575. 

and  engine  therein   held   ratable  as  included  in  the  term  "shed  " 
or  "other  building,"  577. 
ENTIRETY.     See  Busband  and  Wife. 

vsife  no  right  to  fixtures  as  against  a  conditional  seller,  85. 
EQUITY.     See  Action,  Mortgage,  Partition,  Pleading   and  Practice,  Es- 
toppel. 

remedies  in,  respecting  fixtures,  614. 

not  granted  when  relief  may  be  had  at  law,  615,  616. 

bill  to  have  fire  engines  applied  to  increase  the  personal  assets,  615. 

bill   to    foreclose   mortgage,    and    to    compel    purchaser    of    fixtures 
severed  by  mortgagor  to  pay  value  thereof  into  court,  etc.,  615. 

compensation  allowed  for  improvements  made  bona  fide,  80. 

removal  of  buildings,  when  allowed  in  ejectment,  615. 

rules  governing  removal  of  fixtures  from  mortgaged  land,  71,  73. 

when  lessor  can  maintain  action  to  determine  value  of  buildings,  530. 

when  crop  may  be  attached,  365. 
Injunction, 

value  of  fixtures,  when  to  be  assessed  as  damages  upon  dissolution 
of,  203,  609. 

to  restrain  defendant  from  harvesting  crops,  removing  manure,  etc., 
362,  608.' 

writ  of,  when  granted  to  prevent  waste,  etc.,  127,  601  et  seq. 


INDEX.  711 

[EEFEKENCES    ABE   TO    THE   BOTTOM    PAGES.] 

EQUITY,  Injunction,  continued — 

writ  of,  when  granted  to  prevent  removal  of  fixtures,  229,  487,  601, 
606,  611. 

not  granted  unless  the  property  is  annexed  to  the  freehold,  604. 

granted  in  cases  of  constructive  annexation,  605. 

tenant    for    life    without    impeachment    of    waste    restrained    from 
malicious  destruction  of  buildings,  etc.,  266,  606. 

parties  between  whom  applicable,  606. 

by  owner  of  inheritance  against  tenant  for  life,  or  for  years,  etc., 
606. 

not  granted  where  landlord  not  entitled  to  the  reversion,  608. 

not  precluded  where  lease  contains  covenant  to  repair,  etc.,  608. 

not  precluded  where  lease  contains   covenant   to   repair,   nor   where 
there  is  a  covenant  not  to  injure,  cut  down,  etc.,  608. 

mortgagor  when  restrained  from  severing  fixtures,  etc.,  609. 

when  lies  in  favor  of  judgment  creditors  to  prevent  removal  of  fix- 
tures, 610,  612. 

at  suit  of  vendor  against  the  vendee  of  realty,  612. 

at  suit  of  patron  against  rector  or  vicar,  613. 

account  granted  as  an  incident  to,  613. 

no  injunction,   no  account,   613. 

no  injunction,  no  account  exception  in  cases  of  mines  and  collieries, 
614. 

when  granted  to  restrain  trespasses,  614. 

trees  on   boundary  line,  99,  100. 

to  restrain  procee'lings  by  a  sole  arbitrator,  528. 

to  restore  a  still,  266. 

duty  of  person  in  contempt  for  violation  of,  609. 
Receiver, 

when  appointed  on  a  bill  to  restrain  waste,  614. 

to  take  possession  of,  harvest  and  preserve  crops,  when  appointed, 
362. 

not  entitled  to  crops  as  against  mortgagor,  348,  352. 
Reformation, 

of  lease,  to  permit  removal  of  fixtures,  220, 
Subrogation, 

none  against  railway  company   for  amount   jiaid  by   insurance  com- 
pany for  a  loss  occasinnc<l  by  a  locomotive  to  a  house  erected 
upon  railway  land  without  authority,  88. 
ERECTIONS.     See  Covenants   to  Ixepnir,  etc.,  Structures,   Buildings,  Im- 
prnvcinrnts. 

meaning  of  the  term,   10,  239  et  seq. 

inclndcs  retorts,  cisterns,  etc.,  242,  246. 

includes  machinery,  r>2fi. 

incliidos  a  grr-onhouso,  244,  .^fil. 

inrhides  veranda,  244. 

crib-work  and  earth-filling  not,  525. 


712  INDEX. 

[REFEUEIICES    ABB    TO    TUE    BOTTOM    TAGES.] 

ESTOPPEL, 

miiy  prevent  party  from  alleging  rolling-stock  to  be  personalty,  51. 

in  cases  of  erections,  alieiio  solo,  98. 

owner  of  land  may  be  stopped  to  deny  that  an  annexation  is  per- 
sonalty, 115,   116,  518. 

persons  claiming  under  a  tenant  for  years  estopped  by  execution  of 
chattel  mortgage,  50,  422,  521,  623,  624. 

landlord  when  estopped  from  claiming  fixtures  sold  by  his  tenant, 
517. 

declarations  and  admission  of  want  of  title,  when  work  no  estoppel, 
520. 

to  claim  fixtures,  481. 

to  claim  fixtures  of  licensee,  116. 

to  claim  crops,  342,  343. 

to  claim  nursery-stock,  120. 

grantor  not  estopped  to  buy  crops  of  former  tenant,  482. 

grantor  not  estopped  to  claim  fence  rails,  435. 

of  vendor  under  contract,  382,  384. 

of  vendee  under  contract,  522. 

of  grantee,  540. 

of  mortgagor,  423,   521. 

of  mortgagee,  400,  409,  412,  421,  519,  520,  522,  643. 

of  landlord,  192,  217,  518,  519,  520. 

of  tenant,  209,  460,  482,  518,  522. 

of  tenant  in  common,  410,  519. 

of  seller  of  chattels  reserving  title,  84,  521,  522. 

of  buyer,  519. 

of  wife,  518. 

of  beneficiary  of  trust-deed,  520. 

of  insured,  520. 

of  tax-collector,  69. 

of  creditor,  74. 

in  ejectment,  520. 

by  acquiescence  in  sale  of  fixtures  as  chattels,  69. 

by  bidding  at  sale,  519. 

by  presence  at  sale,  519. 

by  bill  of  sale,  522. 

by  levy,  542. 

by  pleadings,  522,  621,  623,  624. 

by  decree,  522. 

by  replevin  suit,  522,  624. 

by  renting  house,  522. 

by  agreement  to  return  machine,  520. 

by  deed,  521,  522. 

by  mistake  in  deed,  521. 

by  unperformed  conditions,  520. 


INDEX.  713 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

ESTREPEMENT.    See  Injunction,  Prohibition. 

writ  of,  when  it  lay,  599. 

obsolete  in  the  United  States,  591,  601. 
ET  CETERA, 

effect,  251,  466. 
EVIDENCE.     See  Intention,  Question  of  Fact,  Question  of  Law. 

stronger  required  as  to  articles  subsequently  annexed  to  mortgaged 
land,  409,  415. 

of  parol  license  to  remove  must  be  very  clear,  246. 

real  more  satisfactory  than  oral,  147. 

oral,  when  admissible  where  lease  in  writing,  147. 

oral,  to  show  what  articles  are  covered  by  an  expression  in  a  deed, 
516. 

oral  can  be  offered  by  third  parties  to  contradict  deed,  516. 

of  abandonment,  failure  to  remove  is,  218. 

of  secret  intent  not  admissible,  41,  55. 

what  is,  that  a  building  is  movable,   107. 

enumeration  of  articles  does  not  make  them  part  of  the  realty,  468. 

of  right  to  remove  fixtures,  what  is,  112,  113,  114,  116,  119,  187,  199, 
217,  221,  225,  257,  259,  623. 

of  intention,  what  is,  28,  43,  56,  57,  58,  136,  137,  236.  402,  440,  449, 
452,  663. 

of  intention  from  adaptation,  58. 

of  intention  by  annexation,  137. 

of  intention  by  giving  a  bill  of  sale,  57. 

of  intention  by  giving  a  chattel  mortgage,  57,  58,  136,  471,  472. 

of  intention  by  claiming  lien,   136. 

of  intention  by  endeavor  to  purchase,  137. 

of  intention  by  insurance  of  fixtures,   58,  195,  420. 

of  intention  shown  by  levy,  136. 

of  intention  shown  by  obtaining  consent,  401. 

of  intention  from  option  to  purchase,  136,  137. 

of  intention  shown  by  statements,  57. 

of  intention  from  unity  of  title,  58. 
Bttrden  of  Proof, 

as  to  intention  in  making  an  annexation,  45,  60. 

what  satisfies  the  onus,  45. 

is  with  those  claiming  building  to  bo  personalty,  102. 

same  rule  applies  to  other  annexations,   103. 

as  to  custom  to  have  emblements,  lifs  with  tenant,  .'?r)4. 

as  to  annexations  made  to  mortgaged  land,  417,  419. 

Jxn)iciAL  Notice, 

as  to  crops,  350,  368,  370. 

I*RESUMPTI0N8, 

articles  are  chattels,  60. 
articles  are  movable,  57. 


714  INDEX. 

[references  are  to  tue  bottom  taqes.] 

EVIDENCE,  Presumptions,  continued — 

articles  annexed  are  realty,  GO,   61,  62. 

certain  machinery  is  usually  annexed,  61. 

buildings,  96,  103,  514. 

buildings  of  tenants,  147,  152. 

buildings,   what   will  not  overcome,  96. 

camp,   96. 

fence,    103. 

giving  chattel  mortgage  upon  machinery  makes  it  personalty,  471. 

severance  by  owner,  is  to  convert  article  into  a  chattel,  64. 

tenant  holds  over  by  consent,  207,  260. 

none,  that  lease,  not  printed,  contained  covenants  to  surrender  prem- 
ises in  as  good  condition  as  received,  259. 

none,  that  condition  would  be  broken,  228. 

in  favor  of  landlord  after  surrender,   208. 

grantee  had  notice  of  tenant's  rights,  482. 

right  to  compensation  for  improvements  waived  after  thirteen  years, 
535. 

in  favor  of  master's  findings,  37. 

EXCEPTION.     See  Eeservation. 

effect  of,  in  deed,  66,   67,   401. 
EXECUTION.    See  Extent,  Severance,  Exemption,  Lien. 

fixtures  annexed  by  owner  of  the  fee  not  subject  to  sale  on  /J.  fa., 

as  goods  and  chattels,  537. 
rule  the  same  whether  actually  or  constructively  annexed,  539,  540. 
examples  of  fixtures  held  not  subject  to  /i.  fa.  as  against  the  owner 

of  the  freehold,  48,  537. 
examples  of  articles  held  subject  to  f..  fa.,  19,  20,  50,  541,  .543. 
growing  grass,  trees,  etc.,  not  subject  to  -fi.  fa.,  541. 
levy  of,  upon  growing  grass,  etc.,  or  fixtures,  void,  though  authorized 

by  execution  debtor,  542. 
levy  of,  upon  growing  grass,  etc.,  or  fixtures,  void,  though  authorized 

by  execution  debtor,  see,  however,  542. 
growing  crops    (being   fructus  industriales) ,   subject   to   fi.   fa.   as 

personalty,  364. 
quaere,  in  case  the  seed  has  not  yet  sprung  up,  368. 
buildings  erected  by  purchaser  of  land  on  execution,  held  removable 

before  redemption,  423. 
tenant's  fixtures  removable  as  against  the  landlord  are  subject  to 

fi.  fa.  as  chattels,  544, 
instances  where  held  subject  to  fi.  fa.  against  tenant,  544. 
fixtures  not  removable  as  against  landlord  not  subject  to  fi.  fa.,  545. 
erections  made  upon  the  land  of  another  by  his  consent,  subject  to 

fi.  fa.,  546. 
the  tenant  or  other  person  must,  however,  have  a  power  of  removal 

coupled  with  an  interest,  547. 


INDEX.  715 

[befebexces  are  to  the  bottom  pages.] 
EXECUTION,  continued— 

the  tenant 's  interest  in  the  landlord 's  fixtures  may  be  sold  on  execu- 
tion, 547. 

but  not  if  wrongfully  severed  by  the  tenant,  547. 

sheriff  ought  to  sell  the  fixtures  separately  from  the  lease,  in  case 
he  cannot  sell  them  with  the  lease  to  one  purchaser,  547. 

a  levy  on  house,  without  also  levying  on  the  lease,  is  irregular,  548. 

articles  constructively  annexed  not  subject  to  levy,  540. 

rights  of  creditors  as  to  buildings  which  the  lessor  has  option  to 
purchase,    534. 

fixtures  on  homestead  exempt,  539. 

fixtures  on  public  land  exempt,  538. 

effect  of  annexation  of  machinery  to  realty  after  levy,  538. 

levy  on  building  carries  the  land,  397. 

constructive  severance  not  effected  by  a  levy  upon  fixtures,  67. 

levy  upon  tenant 's  crops  is  a  constructive  severance,  67. 

after  levy  upon  land,  crops  severed  remain  subject  to,  342. 

EXECUTOE.     See  Heir  and  Executor. 

EXEMPTIONS.    See  Distress. 

of  fixtures  as  personal  property,  106,  539,  546. 
of  building  extends  to  land,  398,  559. 
from  taxation  covers  fixtures,  558,  559,  560. 
of  fixtures  on       '  lie  lanr"    558. 
Homestead, 

fixtures  upon,  exempt,  383,  539. 

fixtures  upon,  removed  by  a  trespasser,  remain  exempt,  71. 

fixtures  upon,  can  only  be  conveyed  as  realty,  539. 

chattel  mortgage  of  fixtures  upon,  is  not  a  constructive  severance,  67. 

can  be  had  in  a  building  which  is  removable,  404. 

does  not   extend   to   fixtures   intended   to   be   annexed,   53. 

crops  upon  are  exempt,  349,  351,  365,  369. 

EXHAUSTEES, 

ratable  to  the  poor,  580. 

EXPRESSIO  UNIUS  EST  EXCLUSIO  ALTERIUS,  467. 

EXTENT, 

fixtures  demised  with  a  paper-mill,  not  subject  to,  538. 

PACT.     See  Question  of  Fact. 

FACTOEIES.     Pee  Buildinn-i- 

covenant  to  keep   insured   embraces  fixe<l   marhinory,    11. 
effect  of  the  use  of  the  term,  in  ft  conveyance  or  policy,  462,  463. 
includes  machinery  for  purpose  of  taxation,  .'566. 
printing  machinery  not,  .'566. 


716  INDEX. 

[BEFERENCES  ABB  TO  THE  BOTTOM  PAOBS.] 

FAN.     See  Pvnlah,  Electric  Fan. 

in   manufacturing  establishment,   aflixed   by   owner   of   freehold   not 
subject  to  fi.  fa.,  537. 

not  pass  with  land,  437. 
FARMING  IMPLEMENTS,   ETC., 

not  fixtures,  18,  26,  49,  51. 
FAUCET.     See  Fosset. 

passes  with  land,  395. 
FENCES.     See  Bails. 

portable,  when  chattels,  19,  91. 

as  examples  of  constructive  annexation,  30,  38. 

whether  part  of  the  freehold,  38,  103,  380,  621,  634,  639. 

erected  by  husband  of  dowress  on  the  dower  estate,  274. 

erected  on  land  of  U.  S.,  19,  93,  95. 

ceases  to  be  realty  by  decay,  458. 

on  boundary  line,  87,  98. 

pail  fence  alieno  solo,  92,  93. 

rail  fence  alieno  solo,  statutory   regulations   concerning,   93. 

rail  fence  passes  to  heir  with  the  realty,  305. 

quaere  whether  a  portable  fence  passes  with  the  land  to  the  grantee, 
454. 

when  removable  by  tenant,  167,  256. 

passes  with  land  to  grantee,  396,  462. 

passes  to  remainderman,  263. 

on  homestead,  exempt,  539. 

are  taxable  as  realty,  563. 

unwritten  partition  of,  valid,   514,  515. 

not  subject  to  levy,  538. 
FENDEE, 

in  mill  stream,  97. 
FEREY-BOAT, 

not  a  fixture,  419. 

subject  to  levy,  543. 

detinue  does  not  lie  for,  621. 

FEETILIZEES.    See  Manure,  53. 

FILTEE, 

when  passes  with  land,  389,  397,  452. 

FINDEE.     See  Accession,  Buried  Articles. 
of  bees  and  honey,  no  right  to,  329. 

FIEE.     See  Severance. 

FIEE-ENGINES.     See  Eemedies. 

personal  estate  passing  to  executor,  134,  159,  269,  271. 
personal  estate  by  custom,  311. 
when  pass  by  bequest,  476. 


INDEX.  717 

[BEFEBENCES  ABB  TO  THE  BOTTOU  PAGES.] 

fiee-fea:me, 

removable  by  tenant,  189. 
FIKE-GEATES.     See  Grates. 

right  to,  as  between  grantor  and  grantee,  etc.,  of  the  realty,  387. 
FIB  TREES.    See  Trees. 

thinnings  of,  belong  to  tenant  for  life,  264. 
FISH, 

when  pass  to  the  heir,  328,  329. 

waste  may  be  committed  in  respect  of,  331. 
FISH-HOUSE  OR  CAMP.     See  Buildings. 

trespass  for,  638. 
FITTINGS.     See  Meaning. 

meaning  of,  8. 

FIXED  AND  ATTACHED.     See  Meaning. 
meaning  of,  9,  573. 

FIXED  AND  FASTENED.     See  Meaning. 

effect  of  the  term  in  a  conveyance,  468. 
FIXED  AND  STATIONARY  PERSONAL  PROPERTY, 

meaning  of  the  term,  567. 

FIXED  ENGINE.     See  Meaning. 
meaning  of,  12. 

FIXED  FURNITURE.     See  Meaning. 
meaning  of  term,  7,  476. 
quaere  whether  a  carpet  is,  476. 

FIXED  MACHINERY.     See  Meaning. 

effect  of  the  term  in  a  conveyance,  468. 

meaning  of,  11. 

insurance  of,  creates  double  insurance,  463. 

FIXED  PLANT.    See  Meaning. 
meaning  of,   11,  535. 

FIXTURES.     See    Trade  Fixtures,  Pleading,  and   the   titles  immediately 

preceding. 
a  modern  word,  2,  127. 

different  significations  of  the  term,  1-7,  18. 
terms  expressing  relation  between  the  parties,  as  tenant's  fixtures, 

etc.,  1,  5. 
meaning  of,   in   declaration,   2,  653. 
meaning  of,  in  Bills  of  Sale  Act,  491. 
ambiguity  of  the  term,  2,  4,  7,  22. 
Fcrard  'h  dofinition  of,  4. 
removaV>Io  and  irrrmovahlc,  1,  3,  ."j. 
the  term,  how  used  in  this  volume,  6. 
meaning  of  term  in  contracts,  7. 


718  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

FIXTURES,  eontinued— 

meaning  of  term  "fixed  furniture,"  7. 

meaning  of  term  ' '  fixtures  and  appurtenances, ' '  8. 

meaning  of  term  "work  done  and  fixed,"  8. 

meaning  of  term  "fixtures  and  articles  in  the  nature  of  fixtures," 

meaning  of  term  "improvements,"  etc.,  9. 

distinction  between,  and  repairs,  12. 

term  "fixture"  not  prcdicable  of  name  of  building,  13. 

tests  as  to  whether  a  fixture  or  not,  13  et  seq.,  439. 

tests  as  to  whether  a  fixture  or  not,  contradiction  among  the  authori- 
ties as  to  what  are,  13. 

annexation  necessary,  14  et  seq.     See  Annexation. 

adaptation  and  preparation  to  be  used  with  realty  as  a  test,  24,  26. 

true  criterion  of  an  irremovable  fixture,  27. 

true  criterion  of  an  irremovable  fixture,  real  or  constructive  annexa- 
tion,  27. 

true  criterion  of  an  irremovable  fixture,  appropriation  or  adaptation, 
24,  27. 

true  criterion  of  an  irremovable  fixture,  intention,  27.     See  Inten- 
tion. 

whether  a  fixture  or  not,  a  mixed  question  of  law  and  fact,  35,  147, 
188,  190. 

where  the  facts  are  undisputed,  a  question  of  law,  36,  190. 

during  annexation,  are  parcel  of  the  realty,  122,  123. 

are  not  goods  and  chattels  within  bankrupt  law,  123. 

cannot  be  treated  as  goods  in  an  action  for  their  price,  124. 

degrees  of  relaxation  of  the  ancient  rule  respecting,  138. 

authority  of  decisions  arising  between  landlord  and  tenant,  executor 
and  heir,  etc.,  138. 
FIXTURES  AND  APPURTENANCES.     See  Meaning. 

meaning  of,  8. 

FIXTURES  AND  FITTINGS.     See  Meaning. 
meaning  of,  8. 

FLOATING-DOCK, 

not  a  fixture,  44,  426, 

nor  a  building,  44,  431. 

occupier  of,  not  ratable,  572. 

description  of,  in  declaration  to  enforce  mechanics'  lien,  639. 

FLOOR.     See  PlanTc. 

when  removable  by  tenant,  143,  146, 
when  passes  with  land,   396,  437. 
mechanics'  lien  allowed  for,  427. 
not  subject  to  levy,  540. 
not  subject  to  distress,  552. 


INDEX.  719 

[REFERENCES  ARE  TO  TUE  BOTTOM  PAGES.] 

FLOWERS.     See  Plants. 

mechanics'  lien  not  allowed  for,  13. 

not  removable  by  tenant.  194. 
FLUES, 

mechanics'  lien  allowed  for,  428. 
FLUME, 

of  a  mill,  a  fixture  and  subject  to  a  mechanic's  lien,  430. 
FLY-WHEEL, 

not  subject  to  extent,  538. 
FOLD-YAED  WALL.     See  Wall. 

erected  by  tenant  in  agriculture    not  removable,  167. 
FORCE-PUMP.     See  Pumps. 

right  to,  as  between  vendor  and  vendee  of  the  realty,  381. 
FORCIBLE  DETAINEE.     See  Action. 
FORECLOSURE.     See  Lien,  Mortgage. 
FORFEITURE.    See  Removal,  Re-entry. 

by  tenant,  what  is,  230,  231. 

right  of  removal  lost  by,  210. 

does  not  affect  right  of  seller  on  condition,  229. 

does  not  affect  right  of  chattel  mortgagee,  384. 

does  not  affect  right  to  crops,  359. 

not  favored,  256. 

may  be  waived,  230. 

not  allowed,  when  landlord  knew  of  but  did  not  object  to  tenant's 
acts,  233. 
FORGE, 

passes  with  land,  393. 
FOSSETS.     See  Faucets. 

as  between  grantor  and  grantee  of  the  realty,  433. 
FOUNDATION, 

is  an  addition,  10. 

is  a  superstructure,  11. 

of  stone,  when  not  sufficient  annexation  to  realty,  620. 

FOUNTAIN, 

when  removable  by  tenant,   194,  197. 

FOWL-HOUSE.     See  Buildings. 

erection  of,  not  a  repair,  237. 

FRAMES, 

filled  with  satin,  when  removable  by  tenant  for  life,  279. 

FRAUD, 

claim  of  creditors  of  husband  to  buildinf;  crecte<l  by  him  on  wifo'« 

land,  414. 
vendee  of  land  under  contract  ni.nv  remove.   3S4. 


720  INDEX. 

REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

FRAUDS,  STATUTE  OF.     See  Statute  of  Frauds. 
FRAUDULENT  CONVEYANCES.     See  Emblements,  Statute  13  Eliz. 
does  not  affect  crops,  362, 

FRENCH  LAW.     See  Civil  Law. 

as  to  statuary,  41. 
FRUCTUS  INDUSTRIALES.     See  Emblements. 
FRUCTUS  NATURALES.     See  Emblements. 

what  are,  333. 

unsevered,  pass  to  heir,  333. 

FRUIT.     See  Peaches. 

is  crop,  338. 

unsevered,  a  part  of  the  realty  and  passes  to  the  heir,  333. 

severed,  passes  to  executor    332. 
FUEL.     See  Coal. 

not  a  fixture,  52. 
FUEL-HOUSE.     See  Buildings. 

erected  by  tenant  in  agriculture,  not  removable,  167. 
FULLING-MILL.     See  Buildings,  Mill. 

when  passes  on  a  conveyance  of  the  realty,  465. 

FULLING-STOCKS, 

right  to,  as  between  tenants  in  common,  380. 
FURNACES, 

cases  in  Year  Books  and  other  early  reports  relating  to  removal  of, 
130  et  seq.,  196,  298. 

removable  by  tenant,  130,  139,  197. 

removable  by  tenant  for  life,  276. 

removable  by  tenant,  see,  however,  152,  265. 

pass  to  the  heir  with  the  realty,  298,  300. 

when  pass  to  grantee  or  mortgagee  with  the  realty,  389,  450,  468. 

subject  to  mechanics'  lien,  427,  428,  429. 

not  subject  to  extent,  538. 

not  subject  to  distress,  550,  552. 

trover  and   trespass  for,   655,   656. 

removable  by  vendee  of  land  under  contract.  383. 

goes  to  executor,  273. 

covered  by  insurance,  379. 

doors  of,  are  trade-fixtures,  140. 

FURNITURE.     See  Fixed  Furniture,  Household  Furniture. 
distinguished  from  fixtures,  7,  124. 
considered  as  personalty,  53,   125. 
trover  for,  650. 

a  glass  case,  case  of  drawers,  and  mirror  considered  as,  125,  201,  650. 
so,  as  to  gas  fixtures,  125,  447,  650. 
other  articles  of,  enumerated,  447  et  seq. 


INDEX.  721 

[REFERENCES  ABE  TO  THE  BOTTOM  PAGES.] 

FURNITITRE,  continued- 
may  be  removed  by  tenant  after  expiration  of  tenancy,  201, 
not  included  in  covenant  to  yield  up  in  repair  with  all  fixtures    etc 

240. 
does  not  in  general  pass  with  the  realty  though  temporarily  annexed 

437,  447. 
will  pass  if  such  is  the  intention  of  the  owner  of  the  fee  450. 
meaning  of  the  term  in  wills,  475,  476. 
whether  it  enhances  the  ratable  value  of  the  realty,  579. 
GAME, 

qualified  property  in,  327. 

killed  by  trespasser,  belongs  to  owner  of  the  land,  328. 

when  the  subject  of  felony,  328. 

waste  may  be  committed  in  respect  of,  331. 

chattel  interest  in,  passes  to  executor,  331. 

GAEDEX-GKOUXDS.    See  Nurseries. 

GARTER, 

of  gold,  in  the  nature  of  an  heir-loom,  320. 

GASELIERS.     See  Gas  Fixtures. 

held  to  pass  with  the  realty,  448. 

GAS  ENGINE.     See  Steam  Engine. 

passes  on  conveyance  of  land,  389. 

GAS-FITTINGS, 

as  trade-fixtures,  141. 

pass  to  the  grantee  with  the  realty,  390,  449. 

mechanics'  lien  allowed  for,  429. 

GAS-FIXTURES, 

considered  as  furniture,  489,  650. 

removable  by  tenant,   141,  197,   242. 

do  not  in  general  pass  on  a  conveyance  of  the  realty,  390,  447. 

will  pass  when  such  is  the  intention  of  the  owner  of  the  land,  450. 

removable  by  vendee  under  contract,  383. 

mechanics'  lien  allowed  for,  429. 

not  covered  by  policy  of  insurance,  449. 

GAS-HOLDERS, 

occupiers  of,  ratable,  580. 

GAS-METERS.     See  GasPipnt.  Improvements,  Meters. 
are  personal  property,  560. 
are  mere  chattels,  and  not  ratable  to  the  poor,  579. 

GASOMETERS, 

removable  by  tenant,  197. 
pnRH  with  the  inhoritnnrp,  449. 
occupiers  of,  ratable,  578, 
46 


722  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

GAS-PIPES.    Seo  Pipes. 

laid  in  streets  by  permission,  are  personalty,  104. 

when  removable  by  tenant,  141,  146,  165. 

how  taxable,  559,  5G0. 

the  word  "machinery"  held  to  include  gas-pipes  and  meters,  559, 
560. 

occupier  of,  ratable,  568,  578. 

when  not  covered  by  mortgage,  104. 

go  to  executor,  273. 

covered  by  insurance,  379. 

owners  of,  not  landowners,  104. 
GATE, 

trover  for,  652. 

not  subject  of  deodand,  679. 

GEAEING, 

covered  by  insurance,  379. 

annexation  by,  effect,  433. 
GIBBET  AND  CHAIN, 

upon  the  land  of  another,  86. 
GIN.     See  Cotton-gin. 

GIN-HOUSE.     See  Buildings. 

is  immovable  by  destination,  11. 
GIN-STAND, 

not  covered  by  mortgage  of  land,  419. 

mechanics'  lien  allowed  for,  427. 

GLASS.    See  Mirrors. 

not  removable  by  tenant   from  windows  of  the  demised  premises, 
187,   188,   189. 

passes  to  heir  and  not  to  executor,  300. 

glasses  in  panels  a  part  of  the  freehold,  476. 

removal  of  is  waste,  127. 

GLASS  CASE.     See  Furniture,  Case. 

GOODS.     See  Meaning. 
meaning  of,  12. 
confusion  of.     See  Accession. 

GOODS  AND  CHATTELS.     See  BanTcruptcy. 

crops  are,  364. 
GOODS,  CHATTELS  AND  EEFECTS, 

meaning  of,  in  declaration  in  trespass  for  taking,  637. 

GOODS,  CHATTELS  AND  FIXTURES.     See  Meaning. 

meaning  of,  in  declaration  in  trover,  2,  653. 
GOODS  SOLD  AND  DELIVEEED.     See  Pleading. 

GOODS,  WARES  AND  MERCHANT)ISE,     See  Statute  of  Frauds,  Stamp 
Acts. 


INDEX.  723 

[BEFKBENCES  ABB  TO  THE  BOTTOM  PAGES.] 

GOVERNMENT  LAND.     See  Public  Land. 

GEANARY.     See  Buildings. 

on  staddles,  a  chattel,  18,  648. 
may  be  a  chattel  by  custom,  311. 

GRANTOR  AND  GRANTEE.     See  Mortgagor  and  Mortgagee,  ^aluatior^, 

Lease,  Machinery,  Furniture,  Manure,  Registry  Acts,  Covenant, 

Warranty. 
rule  between,  same  as  between  executor  and  heir,  etc,  378. 
fixtures  pass  by  a  conveyance  or  mortgage  of  the  freehold,  387,  433, 

439. 
articles  held  to  pass  with  the  realty,  23,  387  et  seq. 
articles  held  not  to  pass,  19,  433  et  seq. 
rule  same  where  the  conveyance  is  by  virtue  of  legal  process,  402, 

406. 
so,  in  the  case  of  the  conveyance,  etc.,  of  a  lease-hold,  403. 
a  grant  of  a  barn,  shop,  house,  etc.,  passes  the  title  to  the  land 

under  it,   397. 
mere  chattels  not  annexed  to  the  realty  do  not  pass  by  a  conveyance 

thereof,  433. 
articles  constructively  annexed  to  the  realty  pass  therewith,  453. 
so,  as  to  articles  temporarily  or  accidentlly  severed,  456,  457. 
otherwise  if  permanently  severed,  456. 
articles  severed  by  act  of  God,  held  to  pass,  457,  458. 
articles  unlawfully  severed  pass,  457. 
influenco  of  intention  upon  the  question,  386,  460. 
effect   of   using   the   terms  "fixtures,"   "fixed   furniture,"   "fixed 

machinery,"  etc.,  462,  464,  468. 
effect  of  using  the  terms  "factory,"  "mill,"  etc.,  462  et  seq. 
the  deed  may  express  that  the  fixtures  shall  not  pass,  470. 
or  they  may  be  the  subject  of  a  distinct  contract,  470. 
the  tenant's  removable  fixtures  do  not  pass  by  conveyance  or  mort- 
gage to  one  having  notice  of  his  rights,  478,  482. 
BO,  as  to  annexations  made  under  an  agreement  reserving  the  right 

of  removal,  478. 
so,  as  to  fixtures  sold  by  the  owner  of  the  land  Id  a  third  person, 

478. 
possession  of  tenant  sufficiont  to  put  purchaser  upon  inquiry  ns  to 

the  extent  of  the  tenant's  rights,  481. 
dead  bodies  do  not  pass,  325. 
effect    of    fixtures    being    owned    by    titles    diflToroiit    from    that    of 

grantor,  400. 
right  of  grantee  against  a  chattel   mnrtgngoo  of  fixtiirpfi,   lor),   384. 
right  of  grantee  against  an  unjmid  ncllrr  rcHcrving  fitlo,  85,  484. 
right  of  granteo  against  a  defrauded  seller,  401. 
right  of  grantee  against  a  licensee,  401. 


724  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  TAGES.] 

GRANTOR  AND  GRANTEE,  continued- 
removal  of  fixtures  by  grantor  before  delivery  of  premises,  effect, 
399,  618,  661. 

when  grantee  liable  to  pay  for  improvements  of  tenant,  527. 

effect  of  rc-eutry  of  grantor,  383. 
Sale  of  Land  Under  Contract, 

right    to    remove   fixtures,    determined    by    rule    prevailing   between 
grantor  and  grantee,  381,  385. 

fixtures  not  removable,  59,  72,  351,  383,  384. 

heater  placed  in  a  tannery  by  a  conditional  vendee  when  a  chattel,  20. 

grantee  can  not  remove  fixtures  which  were  his  upon  the  land  at 
the  time  contract  made,   383. 

right  of  grantor  against  third  parties,  59,  85,  105,  383. 

right  to  crops,  344. 

when  grantor  can  bring  trover,  643,  645. 

when  grantor  can  have  grantee  enjoined,  612. 
GRAPE  VINES, 

considered  as  sustaining  the  same  relation  to  the  freehold  as  crops, 
337,  338,  343. 
GRASS.     See  Execution,  Larceny,  Emhlements. 

when  severed  by  chattel  mortgage,  67. 

when  passes  with  land  to  heir,  334. 

when  passes  with  land  to  devisee,  334. 

when  species  considered  emblements,  334. 

when  not  subject  to  ji.  fa.,  541,  542, 

is  not  personal  property,  369. 
GRATES, 

when  fixtures,  38. 

removable  by  tenant,  197. 

removable  by  tenant  for  life,  276. 

when  they  pass  to  executor  of  incumbent,  286. 

not  subject  to  distress,  552. 

do  not  pass  on  conveyance  of  the  realty,  450,  452. 

when  annexation  of,  confers  settlement,  586. 
GRATING, 

on  street,  removal  of,  is  a  breaking,  677. 
GRAVEL, 

removable  by  tenant,  164,  197. 
GRAVE-STONES.     See  Tomls. 

are  in  the  nature  of  heir-looms,  320,  324. 

who  to  bring  action  for  injuries  thereto,  324. 

GREEN-HOUSES.     See  Buildings. 

not  pass  by  conveyance  of  realty,  434. 

when  removable  as  trade  fixtures,  19,  164. 

erected  for  ornamental  purposes,  when  removable,  187. 


INDEX.  725 

[REFERENCES  ABE  TO  THE  BOTTOM  PAGES.] 

GREEN-HOUSES,  continued- 
included  within  the  term  "erections  and  improvements,"  244, 
valued  as  land,  573. 

GRIND-STONES, 

not  fixtures,  381. 
GRIST-MILL, 

"Noyes  portable,"  held  to  be  a  fixture,  passing  with  the  land  to 

grantee,  391. 
when  presumed  personal  property,  96,  103. 
not  covered  by  mortgage  of  land,  419. 
not  subject  to  levy,  537. 

GROWING-CROPS.     See  Eviblements,  Crops. 
GUARDIAN  AND  WARD.     See  Disability. 

guardian  allowed  to  remove  house  erected  by  him  on  ward 's  land,  94. 

right  of  ward  who  is  life  tenant,  as  against  remainderman,  524. 

right  of  ward  to  crops  upon  disaffirmance  of  lease,  358. 

GUTTERS.     See  Troughs. 

not  removable  by  tenant,  194. 

HAND-MILL.     See  Mill. 
trover   for,   652. 

HANGINGS, 

held  to  bo  furniture,  447. 

removable  by  tenant,  196. 

removable  by  tenant  for  life,  276. 

when  they  pass  to  executor  of  incumbent,  285. 

as  between  executor  and  heir,  301,  309. 

as  between  grantor  and  grantee  of  the  realty,  447. 

HAWKS, 

pass  to  executor,  330. 
HAY, 

cut  on  fiublic  land,  roj)lcvin  for,  026. 
HAY-CUTTER, 

erected  by  an  inn-keeper  passca  with  land  to  grantee,  392. 

HAY-FORK, 

passes  with  land,  396. 

HEARTHS, 

passes  with  land,   396. 

HEATER.     See  Jiadiators. 

in  a  tannory,  not  fa.stoiicd,  a  chaftol,  20,  296. 
in  paper  mill,  not  subject  to  extent,  538. 
Dot  rated  as  realty,  577. 
not  part  of  the  ro.'ilty,   O.'JS. 
when  passes  with  land,  '.W7,  450. 


726  INDEX. 

[references  abb  to  the  bottom  taqes.] 

HEATER,  continued- 
mechanics'  lien  allowed  for,  428. 
covered  by  insurance,  379. 
not  subject  to  levy,  538. 

HEATING-PIPES.     See  Pipes. 

in  green-house,  removable  by  tenant,  187. 

HEATING-PLANT.     See  Steam-Heater. 
when  an  '  *  addition, ' '  10. 
not  removable  by  tenant,  146. 
removal  of  is  waste,  127. 

HEDGE, 

mechanics'  lien  not  allowed  for,  13. 

on  boundary  line,  is  common  property,  99. 

HEIR  AND  EXECUTOR.  See  Ornamental  and  Domestic  Fixtures,  Char- 
ters, Heir-looms,  Annexations  to  Freehold  of  Church,  Valuation. 

fixtures  as  between,  295  et  seq. 

rule  the  same  as  between  vendor  and  vendee,  etc.,  308. 

less  relaxation  of  the  old  rule  in  this  relation  than  in  that  of  land- 
lord and  tenant,  etc.,  295. 

grounds  of  the  strict  application  of  the  rule,  295. 

degree  of  annexation  requisite  to  convert  a  chattel  into  a  fixture, 
290. 

■when  an  annexation  passes  with  the  land  to  the  heir,  296,  297. 

of  tenant  in  tail,  right  to  fixtures  as  between,  298. 

of  tenant  pur  autre  vie,  rights  to  fixtures  as  between,  524. 

cases  in  Year  Books  respecting  fixtures  as  between  heir  and  execu- 
tor, 298. 

test  of  being  accessory  to  a  matter  of  a  personal  nature,  etc,  302- 
305. 

Lawton  v.  Salmon  and  other  cases,  303. 

when  trade  fixtures  pass  to  heir  with  the  realty,  305-308. 

mixed  cases,  so-called,  305. 

Fisher  v.  Dixon,  306-308. 

ornamental  and  domestic  fixtures,  308,  310. 

fixtures  constructively  annexed  pass  with  the  realty  to  the  heir,  310. 

effect  of  custom  upon  the  question  as  to  whether  a  thing  passes 
with  the  realty  to  the  heir,  310. 

statutory  regulations  of  the  question,  311,  473. 

New  York  statutes,  construction  of,  311-313. 

proceeds  of  house  and  fence  which  ancestor  had  erected  upon  land 
of  another,  go  to  heir,  297. 

HEIR-LOOMS, 

defined,  318,  319. 

ornament  of  bishop 's  chapel  are  in  the  nature  of,  287. 

due  by  custom,  318,  319,  323. 


INDEX.  72T 

[REFERENCES  ABE  TO  THE  BOTTOM  FAOES.] 

HEIE-LOOMS,  continued- 
instances  of,  318. 

chattels  in  the  nature  of,  319. 

cannot  be  devised  away  from  the  heir,  323. 

pass  with  the  house  to  the  devisee  of  the  house,  324. 

may  be  sold  by  the  owner  of  the  inheritance,  323. 

may  be  recovered  in  detinue,  319. 

bill  lies  for  specific  delivery  of,  324. 

quasi  heir-looms,  or  heir-looms  by  settlement,  321. 

things  consumable  in  the  use  cannot  be  limited  as,  322. 

undertaking  to  take  care  of,  323. 

HIGHWAY.     See  Street. 

HINGE-STAPLES, 

pass  to  grantee  of  a  barn  though  temporarily  severed,  456. 

HITCHING-POST.     See  Post. 

HOMESTEAD.     See  Exemption. 

HONEY, 

belongs  to  owner  of  tree,  329. 

HOP-POLES.     See  Poles. 

pass  on  a  foreclosure  sale  of  the  land,  454. 

HOPS. 

are  personal  property,  371. 
the  subject  of  emblements,  336. 
HOENS.     See  Pusey  Horn. 

HOSE, 

connection  by,  is  not  annexation,  436. 
mechanics'  lien  not  allowed  for,  430. 

HOT-HOUSES.     See  Buildings. 

when  removable  as  trade  fixtures,  164. 

erected  for  ornamental  purposes,  when  removable,   187. 

removable  by  incumbent  of  benefice,  287,  290. 

HOUNDS, 

pass  to  executor,  330. 
HOUSEHOLD  FURNITURE.     See  Furniture. 

moaning  of  the  term,  475, 

stoves,  blinds,  beli-pullB,  etc.,  held  to  pass  under  a  bequest  of,  475. 

HOUSEHOLD  GOODS.     See  Furniture. 

gaH-fixtiires  are,   489. 
HOUSEHOLD  GOODS  AND  IMPLEMENTS  OF  HOUSEHOLD, 

a  clock  held  to  pass  by  a  bequest  of,  if  not  fixed,  476. 

HUSBAND  AND  WIFE.     Seo  disability. 

right  to   improvmrntH  made   by   husband   on   wife's   iund,   s,.    inn. 

114,  413,  411. 


728  INDEX. 

[references  are  to  the  bottom  pages.] 

HUSBAND  AND  WIFE,  continued- 
estoppel  of  wife,  518. 

creditor  cannot  seize  buildings  placed  by  community  on  wife's  land, 
538. 

crops  pass  with  land  allowed  for  alimony,  360. 

husband  cannot  remove  manure  from  wife's  land,  460. 
HYDRANTS.    See  Water-Pipes. 

how  taxable,  559,  560. 
HYDBAULIC  PRESS.     See  Presses. 

removable  as  a  trade  fixture,  142. 

when  passes  on  a  conveyance  of  the  realty,  390,  443. 

right  to  as  between  vendor  and  assignee  in  bankruptcy,  510. 

trover  for,  648. 

ICE.     See  Accession. 

when  constructively  annexed,  46. 

when  a  part  of  the  land,  83. 

cut  and  removed,  345, 

is  not  emblements,  333. 

passes  to  grantee  of  the  realty,  456. 

sale  of,  not  within  the  State  of  Frauds,  514. 
ICE-BOX, 

does  not  pass  with  land,  436. 
ICE-CHEST, 

is  a  trade  fixture,   143. 

right  to  as  between  grantor  and  grantee  of  the  realty,  388. 
ICE-HOUSES.     See  Buildings, 

removable  as  trade  fixtures,   149,  150. 

reasonable  time  allowed  to  remove  where  tenancy  was  of  uncertain 
duration,   212. 

IMMOVABLES.     See  Movable. 

when  columns  and  statues  are,  40. 

when  materials  from  a  demolished  building  are,  54.    " 

covered  by  a  mortgage  of  the  realty,  399. 

by  destination,  what  are,  34. 

by  destination,  are  subject  to  a  privilege,  480. 

by  destination,  larceny  may  be  committed  of,  670. 
IMPORT.     See  Definition,  Meaning. 

IMPROVEMENTS.     See  Metals  and  Improvements,  Ejectment. 
meaning  of  term  as  between  lessor  and  lessee,  9. 
a  more  comprehensive  term  than  "fixtures,"  9,  243,  244,  246,  247. 
on  land  of  U.  S.,  statutes  concerning,  93. 
promise  to  pay  for,  not  within  Statute  of  Frauds,  219. 
the  term  includes  mill-stones,  243. 

the    term    includes    gas-pipes,    burners,    gas-ladders,    meters,    doors, 
hinges,  locks,  etc.,  244. 


INDEX.  729 

[REFERENCES  ARE  TO  THE  BOTTOU  FAQES.] 

IMPBOVEMENTS,  continued— 

the  term  includes  green-houses,  244. 

the  term  includes  verandas,  244. 

the  term  includes  plate-glass  shop  fronts,  245. 

the  term  includes  steam-engines,  245. 

what  are,  10,  246,  247,  251,  252,  383,  526. 

alfalfa  is  not,  559. 

includes  repairs,  246,  525. 

INFANCY.     See  Disability. 

disability  of,  with  reference  to  annexations  alieno  solo,  94. 

infant  life  tenant,  relief  against  remainderman,  524. 
INJUNCTION.     See  Equity. 

INJURY, 

to  freehold  as  affecting  right  of  removing  fixtures,  22,  34,  107,  153- 
157,  438,  573. 

tenant  liable  for  unnecessary,  154,  157. 

a  question  for  the  jury,  155. 

principal  not  to  be  destroyed  in  removing  accessory,  155, 

rule,  156. 

what  is,  154,  155. 
INSOLVENCY.     See  Assignee,  Bankruptcy. 

INSURANCE.     See  Factories. 

14  Geo.  3,  c.  78,  construed,  124. 
insurable  interest  of  lessor,  235. 
of  addition  to  a  main  building,  who  entitled  to  money  due  thereon, 

398. 
what  is  covered  by  policy,  379. 
ordered  by  second   mortgagee   gives  him   no   prior  claim   to   money 

paid  for  loss  of  machinery  which  is  a  part  of  the  building,  71. 
does  not  cover  gas-fixturcs,  449. 
does  not  cover  removable  machinery,  402. 

of  building  which  is  removable,  is  insurance  of  realty,  223,  379. 
of  building,  is  implied  warranty  of  title  to  land.  30.S. 
vendor's  lien  on  land,  is  an  inciinil)ran<'0  on  flic  Imililing,  40S. 
insured  estopped  to  claim  that  a  burn  is  a  chattel,  r)20. 
of  a  "factory,"  "mill,"  effect,  11,  463. 
construction   of  policy,  4(15. 

construction  of  policy,  what  is  a  utmrtiirc.  370. 
construction  of  policy,  what  are  fixtures,  13. 
construction  of  policy,  what  are  store  and  otTice  fixtures,  379. 
construction  of  policy,  what  are  storo  and  otlier  fixtures,  8. 
construction  of  iiolicy.  what  nro  yard  fixtures.   I'J. 
policy  cannot  make  i)r()perly  pernonal  contrary  to  statute,  37. 
of  fixtures,  as  evidence  of  intention,  58,  420. 
of  fixtures,  as  evidence  of  right  to  remove,  195. 


730  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

INSURANCE,  continued— 

of  fixed  machinery  creates  double  insurance,  463. 

separate   valuation   of   building  and    macliinery   does   not   make  the 

latter  personalty,   472. 
of  building  erected  by  husband  upon  wife's  land,  106. 
of  building  removable  by  one  tenant  in  common,  410. 
insurer  cannot  recover   from  a   railroad   company   for   amount   paid 

to  the  builder  of  a  house   on   railroad   land  without  authority, 

and  set  on  fire  by  locomotive,  88. 

INTENTION.     See  Evidence. 

as  a  test  of  a  fixture,  27  et  seq.,  117,  135. 

limitation  to  the  rule,  34, 

evidence  of,  37,  56,  60,  135,  188,  276,  296,  418, 

influence  of,  well  considered  in  Holland  v.  Hodgson,  43. 

illustrated  from  Year  Books,   137. 

evidence   of   secret   intention   as   to   the   annexation,   cannot    prevail 

over  evidence  afforded  by  actions,  41,  56. 
such  testimony  inadmissible  as  against  grantee  or  mortgagee,  55. 
mere  intention  to  annex,  insufficient  to  convert  into  realty,  53. 

contra,  456,   540. 
and  conversely,  intention  to  sever,  insufficient  to  convert  into  per- 
sonalty, 53,  55,  58,  65. 
examples,  53, 
in  order  that  intention  may  prevail,  the  party  must  have  a  right  to 

determine  in  accordance  therevrith,  56,  59,  60,  487, 
a  question  of  fact  for  the  jury,  56. 
burden  of  proof  as  to,  4o,  60. 
no  special  intent  necessary,  if  there  is  no  intention  of  removing  at 

a  future  time,  60,  418. 
presumptions  as  to  intent  in  making  an  annexation,  60,  78,  86,  96, 

118,  174,  192,  263,  267,  274,  296,  305,  418. 
presumptions  as  to  intent  in  severance,  64. 
presumptions  when  not  conclusive,  96. 
in  ease  of  trade  fixtures,  135,  145,  150,  151. 
in  case  of  ornamental  and  domestic  fixtures,  186,  188,  283. 
in  cases  between  tenant  for  life  or  in  tail  and  remainderman,  etc., 

263,  274,  283. 
in  cases  between  executor  and  heir,  296,  305. 
in  cases  between  grantor  and  grantee,  and  mortgagor  and  mortgagee, 

386,  414  et  seq.,  445,  450,  460, 
annexation  as  evidence  of,  43. 
adaptation  as  evidence  of,  43. 
massiveness  as  evidence  of,  43. 
to  re-annex,  69. 

to  annex,  mechanics'  lien  attaches,  427. 
to  convert  into  a  chattel  by  severance  by  owner  is  presumed,  64, 


INDEX.  731 

[REFERENCES  ABB  TO  THB  BOTTOM  PAQES.] 

INTENTION,  continued— 

to  sever  is  not  shown  bj  a  bill  of  sale,  68. 

not  to  remove  until  danger  of  losing  the  land,  does  not  make  article 
realty,  418. 
IN  THE  NATUEE  OF  FIXTUEES.     See  Meaning. 

too  indefinite,  2. 
lEON  CHEST.     See  Safe. 

set  in  a  recess  in  the  wall  cut  away  to  receive  it,  considered  as  fixed 
to  the  freehold,  456. 
lEEEMOVABLE  FIXTUEES,  1,  3. 

JACK-WEIGHT, 

whether  subject  of  deodand,  680. 
JIBS, 

as  between  landlord  and  tenant,  when  chattels,  19,  648. 

JOINT-TENANTS.     See  Tenants  in  Common,  Entirety,  Partition. 

cannot  make  improvements  on  common  property  without  consent  of 
co-tenants,  etc.,  92. 
JUDGMENT  LIEN.     See  Lien. 
JUDICIAL  NOTICE.    See  Evidence. 

JUEISDICTION, 

what  is  beyond,  as  part  of  the  realty,  380. 

of  justice  of  the  peace,  none  as  to  a  fence,  639. 

of  justice  of  the  peace,  none  as  to  crops,  369. 

to  foreclose  a  chattel  mortgage  on  fixtures  annexed  to  a  homestead, 
539. 

title  to  real  estate  is  not  involved  in  an  injunction  against  the  re- 
moval of  a  house,  605. 

state  court  has,  of  injury  to  a  boom,  639. 
JURY.     See  Question  of  Fact. 
KETTLES.     Seo  Salt-Kettles. 

removable  by  tenants,  140. 

right  to  as  between  tenants  in  common,  380. 

right  to  as  between  grantor  and  granfoc  of  the  realty,  389,  392,  393, 
434. 

y)rew-kettles  held  to  pass  on  sale  to  enforce  mechanics'  lion,  425. 

nichanics'  lion  allowed  for,  42S. 

potash-kettles  held  subject  to  fi.  fa.,  543. 

KEYS.     Seo  Larceny. 

parcel  of  the  freehold  and  go  with  the  house,  45.  300,  310,  453. 

not  goods  and  chattels  within  the  bankrupt  law,  511. 
KILN.     Seo  Brirl-KUn.  LimcKxln. 

passes  with  land,  392. 
LAMPS, 

nro  trade-fixturee,  143. 


732  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

LAMPS,  oontimicd — 

when  pass  with  the  land,  449. 

mechanics'  lien  allowed  for,  431. 
LAMP-POSTS.     See  Posts. 

are  not  machinery,  560. 
LAND.    See  Lands,  Tenements  and  Hereditaments. 

whether  railway  track  on  street  is,  563. 

a  second  floor  is,  586. 

gas-pipes  are  not,  104. 

meaning  of  term  ' '  land ' '  under  statutes  making  judgments  a  lien 
upon  land,  423. 

meaning  of  term  "land"  under  statutes  relating  to  taxation,  562i 

is  unimproved  when  the  buildings  thereon  are  removable,  477. 

LANDLORD  AND  TENANT.     See  Lease,  Distress,  Lien,  Removal,  Trade 
Fixtures. 

meaning  of  improvements  between,  9. 

landlord  has  the  general  property  in  fixtures  demised  with  a  house 
to  a  tenant,  75. 

may  retake  such  fixtures  if  severed  by  tenant,  75. 

not  if  severed  by  act  of  God,  75. 

property  in  fixtures  which  tenant  agrees  not  to  remove,  224. 

landlord  re-entering,  rights  against  seller  on  condition,  85,  479. 

landlord  re-entering,  does  not  acquire  crops  constructively  severed, 
67. 

mechanics'  lien  not  allowed  against  landlord  for  tenant's  fixtures, 
431,  432. 

tenant  has  no  right  to  fixtures  substituted  by  him,  146. 

tenant's  right  to  trees,  163,  164. 

tenant's  right  to  buried  articles,  83. 

tenant's  right  to  remove  buildings,   15,  18,  91. 

rights  under  custom  lost  by  delay,  165, 
LANDS  CLAUSE  CONSOLIDATION  ACT,  123. 
LANDS,  TENEMENTS  AND  HEREDITAMENTS.     See  Land. 

power  supplied  tenant  not  included  in  the  term,  12. 
LAND- WARRANTS.     See  Charters. 

pass  to  the  heir  as  realty,  315. 

LARCENY, 

cannot  be  committed  of  things  savoring  of  the  realty,  667. 

of  manure,  179,  667. 

charters  and  box  containing  them  not  the  subject  of,  316,  317. 

commission  to  settle  boundaries  of  a  manor  not  subject  of,  668. 

corn,  grass,  trees,  etc.,  not  subjects  of,  668. 

of  winding-sheet  and  coffin,  a  felony,  325. 

of  buried  hogs,  670. 

of  deeds,  by  statute,  316. 


INDEX.  733 

[BEFEBBNCES  ABE  TO  THE  BOTTOM  PAGES.] 

LAECENT,  continued— 
of  pigeons,  330. 

of  bees,  oysters,  sea-weed,  etc.,  668. 

examples  of  fixtures  held  not  to  be  subjects  of  larceny,  667. 
may  be  conimittetl  of  articles  only  constructively  annexed,  as  a  key, 

or  belt  in  a  mill,  670. 
common   law  rule  changed  in  England  and  the  United  States  by 

statute,  668,  670. 
decisions  under  those  statutes,  671. 
LATHES.     See  Machinery. 

are  part  of  the  realty,  424. 

right  to,  as  between  grantor  and  grantee  of  the  realty,  389,  434,  438. 
held  subject  to  f.  fa.,  543. 
as  enhancing  the  ratable  value  of  realty,  578. 
LAW,  QUESTION  OF.     See  Question  of  Law. 

LEADS, 

pass  to  heir  as  parcel  of  freehold,  300. 
trover  for,  652. 
LEASE.     See  Landlord  and  Tenant. 

of  factory  and  land,  does  not  pass  portable  wood-cutting  machine,  20. 
a  question  of  fact  whether  fixtures  in  a  house  are  let  as  a  part  of 

the  house,  or  delivered  upon  a  separate  contract  of  sale,  404. 
when  tenant  entitled  to  the  fixtures  on  the  premises,  75,  404. 
tenant  entitled  to  use  of  building  subsequently  erected,  75. 
does  not  cover  a  machine  outside  of  premises  though  connected  by 

belt,  20. 
of  land  covers  crops,   340. 
of  building  covers  land,  398. 

requiring  erection  of  buildings,  no  right  to  remove,  535. 
not  printed,  not  presumiil   t"  contain  covenants  to  surrender  in  as 

good  condition  as  received,  259. 

LEASEHOLD, 

when  machinery  passes  with,  548. 

mortgage  nf,  has  only  the  same  interest  in  the  fixtures  as  ho  ban  in 
the  land,  405. 

buyer  of,  takes  subject  to  conditions.  229. 

quicquid  plantatur  solo,  solo  cedit,  does  not  apply  to,  91. 

mcfhanics'  lien  allowed   against,  432. 

machinery  passes  to  heir  with,  in  Scotland,  297. 
LEGACY.     See  Devise,  Bequest. 

of  crop,  351. 
LEVY.    See  Execution. 

LICENSEE, 

whfn  allowed  to  romovo  fixtures,  11.1,  111,  214,  nS.";,  401,  413. 
parol  evidence  of  right  to  remove  fixtures  must  bo  very  clear,  246. 


734  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  FAOES.] 

LICENSEE,  continued— 

license  to  remove  house  is  not  revocable,  214. 

rij;;ht  to  remove  may  be  lost  by  delay,  214. 

right  to  remove  terminates  with  death,  214. 

not  entitled  to  crops,  346. 

not  entitled  to  manure,  461. 

mechanics'  lien  not  allowed,  432. 

sale  of  buildings  by,  is  not  within  the  Statute  of  Frauds,  513. 
LIENS.     See  Mortgagor  and  Mortgagee,  Severance. 

effect  of  severance  of  tixtures  in  case  of,  72. 

effect  of  statutory  liens  upon  the  right  to  fixtures,  423. 

a  valid  lien  cannot  be  created  upon  a  thing  not  in  existence,  366,  501. 

injunction    by    holders    of,    to    restrain    severance    and   removal    of 
fixtures,  607,  610,  612. 

not  lost  by  a  surrender  by  tenant,  209. 

when  must  be  recorded,  501,  502. 
Agricultural, 

effects  a  constructive  severance,  66,  366. 

as  against  a  grantee  of  the  land,  343,  348,  349,  480. 
Of  Attachment. 

lost  by  annexation  of  article  to  realty,  538. 

lost  by  delay,  538. 
Of  Bond, 

covers  fixtures,  424. 
Of  Chattel  Mortgage, 

not  defeated  by  annexation  of  machinery  to  land,  85. 
Of  Decedent's  Debts, 

attaches  to  fixtures,  425. 

Judgment  Liens, 

none  upon  the  fund  raised  by  sale  of  fixtures  severed  from  the  free- 
hold, 74. 

extend  to  things  passing  by  sale  of  the  land  on  execution,  423. 

but  not  to  the  tenant's  fixtures,  424. 

not  superior  to  claims  of  third  parties,  480. 

effect  of  severance  of  fixtures,  72. 

attaches  to  a  building,  404. 

covers  subsequent  improvements,  424. 

crops,  342. 
Landlord's  Lien, 

when  extends  to  buildings  erected  by  the  tenant,  230. 

inferior  to  a  mortgage  of  the  leasehold,  487. 

if  claimed,  as  evidence  of  intent,  136. 
Mechanics'  Lien, 

porch  or  piazza,  an  addition  within,  of  N.  J.,  10. 

folding  doors  not  an  addition  within,  10. 

a  wing  or  addition,  a  building  within,  of  Penn.,  11. 


INDEX.  735 

[EEFEEENCES  ARE  TO  THE  BOTTOM  PAGES.] 

MENS,  Mechanics  ',  continued — 

does  not  attach  to  building  built  by  father  upon  land  of  his  infant 

son,  94. 
whether  trade  fixtures,  etc.,  pass  by  sale  to  enforce,  405,  425,  431. 
mechanics '  lien  as  against  chattel  mortgagee  of  engines,  boilers,  etc., 

425. 
in  order  to  be  subject  to,   the  structure  must  be  annexed   to   the 

realty,  426. 
on  steam  boilers  and  gauge-cocks  not  lost  by  severance  in  111.,  432. 
rule  between  heir  and  executor  applies,  425. 
meaning  of  fixed  machinery,  11. 
meaning  of  repair,  alteration  of  or  addition  to,  10. 
meaning  of  superstructure,  11. 
for  what  allowed,  13,  44,  48,  154,  427,  430. 
what  is  covered  by,  10. 
attaches  to  subsequent  annexations,  425. 
covers  articles  intended  to  be  annexed,  54,  427. 
as  against  third  parties,  265,  383,  408,  432,  480. 
■when  attaches  to  leasehold,  188,  432. 
when  not  allowed  as  against  lessor,  107,  145,  431,  432. 
not  lost  by  reservation  of  title,  106,  107,  426. 
on  a  building,  attaches  to  the  land,  398,  425. 
on  tenant's  building,  he  must  be  made  a  party,  223. 

Fob  Taxes, 

does  not  extend  to  personalty,  69. 
covers  a  lathe,  424. 

effect  on,  of  severance  by  fire,  63,  424. 
covers  crops,  343. 

Tenant's  Lien, 

for  value  of  improvements,  532, 

valid  against  grantee  of  land,  527. 
Or  Tenant  in  Common, 

for  improvements,  passes  to  his  mortgagee,  410. 

Or  Unpaid  Seller, 

superior  to  right  of  grantee  of  tho  land,  480. 

superior  to  right  of  mortgagee  of  the  land,  417. 

not   defeated   by   articles   becoming  immov:il)lr!   by   ilostination,   480. 

does  not  attach  to  substituted  ferry-boat,  419. 

Vendor's  Lien, 

attarhos  to  subsequent  annexations,  408,  419. 

superior  to  a  mechanics'  lien,  408. 

effect  of  severance  upon,  72. 

attaches  to  crops,  344,  346. 
LIFE  TENANT.     See  Heir  and  ETCaitnr,  Tenant  for  Life,  Remninflrrman 
LIGHTING  PLANT.    See  Eleciric  Light. 


736  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  FAQES.] 

LIGTITNING-BODS, 

mechanics'  lien  allowed  for,  429. 

LIME-KILNS.     See  Kilns: 

replevin   for,  623. 

are  buildings  within  a  covenant  to  repair  buildings,  238. 
LIQUIDATOE.     See  Assignee,  Bankruptcy,  'Receiver. 

right  of,  to  fixtures,  145,  535. 

LIMITATIONS.     See  Statute  of  Limitations. 
LOCKEES.     See  Burglary. 

pass  to  heir  with  the  realty,  300. 
LOCKS, 

of  a  canal,  materials  of,  when  removable,  117. 

of  a  house,  pass  by  a  conveyance  thereof,  394. 
LOCOMOTIVE.     See  Eolling  Stock. 

LOOKING-GLASSES.     See  Mirrors,  Furniture,  Household  Goods. 
when  fixed  furniture,  7. 

LOOMS.     See  Machinery. 

not  fixed,  are  chattels,  17. 

whether  they  pass  by  a  conveyance  of  the  realty,  392,  433,  441,  442, 

464,  497. 
when  subject  to  fi.  fa.,  543. 

LUMBER.     See  Building  Materials,  Poles,  Posts,  Planks. 

intent  to  annex,  when  sufficient  to  make  a  part  of  the  realty,  53. 
from  building  torn  down  is  personalty,  70. 
does  not  pass  to  grantee  of  land,  435. 

MACHINERY.     See  Taxation,  Gas-Pipes,  Mills,  Saws,  etc. 

mill  machinery  not  goods  and  chattels  within  the  bankrupt  act,  504. 
mill  machinery  not  subject  to  fi.  fa.  against  owner  of  freehold,  537, 

538. 

contra,  20,  543. 
in  paper-mill  will  not  subject  to  extent,  538. 
when  removable  as  trade  fixtures,  19,  140,  141,  142,  143,  146. 
as  related  to  ratable  value  of  realty,  572  et  seq. 
right  to,  as  between  grantor  and  grantee  of  the  realty,  389  et  seq., 

433,  434,  485. 
in  mills  and  factories,  when  passes  to  grantee,  437. 
machines  kept  in  place  by  their  weight  alone  do  not  pass  with  the 

land  to  the  grantee,  435,  465 
only  attached  to  keep  steady,  whether  it  passes  with  the  realty,  441 

et  seq. 
rule  as  to  parts  of  a  machine,  455. 
goes  to  executor,  273,  303. 
on  leasehold,  passes  to  heir  in  Scotland,  297. 
in  condemnation  proceedings,  380. 


INDEX  V37 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

MACHINEEY,  continued- 
mechanics'  lien  allowed  for,  427,  429. 
rights  of  unpaid  seller  of,  105, 
is  part  of  homestead,  383. 
covered  by  insurance,  379. 
how  taxed,  563,  564,  565,  566,  574. 
when  replevin  lies  for,  623. 
when  detinue  lies  for,  621. 
presumed  to  be  annexed,  61. 
when  personalty,   18,  61. 
when  fixture  by  weight,  38. 
when  immovable  by  destination,  34. 
mortgage  of,  is  a  mortgage  of  realty,  502. 
is  appurtenant,  463. 
when  fixed  and  attached,  573. 

whether  pipes,  lamp-posts,  mains  and  meters  are,  560. 
which  is  an  infringement   of   a   patent  is   a  breach  of  a  covenant 
against  incumbrances  on  land,  484. 

MAINS.     See  Gas  Pipes,  Pipes,  Water  Pipes. 

MALICIOUS  INJURIES, 

English  statutes  on  the  subject,  674. 

removal  of  fixtures  under  an  honest  conviction  of  right,  no  offense, 

674. 
land  owner  not  guilty  for  teariug  down  a  building   erected  by  a 

trespasser,  87. 

MALT-MILL.     See  Mill. 

passes  with  the  land  to  the  grantee,  392. 

MANGERS, 

pass  to  the  heir  with  the  realty,  300. 

not  waste  to  break  up  unless  fixed  to  the  freehold,  604. 

MANTEL.     See  Furniture,  Household  Goods. 
not  furniture,  479. 
not  pass  with  land,  437,  451,  452. 
right  of  seller  reserving  title,  105. 

MANURE.     See  Larceny,  Trover. 

right  to,  as  between  landlord  and  tenant,  179-184. 
when  personalty  and  when  realty,  179. 

made  by  tenant  in   ordinary  course   of  husbandry  belongs  to   land- 
lord, 180. 
not  made  in  ordinary  course  of  husbandry,  belongs  to  tenant,  182, 

183. 
and  in  nxioh  raso  it  may  bo  removed  after  the  tenancy,  182. 
right  to.  varied  by  usage  and  rustom,  184. 
as  tho  subject  of  larceny,  179,  667. 

47 


738  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

MANURE,  continued- 
trover  lies  for,  if  wrongfully  converted,  179,  180,  642. 
belonging  to  tenant  tloes  not  pass  by  a  conveyance  of  the  land,  182. 
passes  to  the  heir  with  the  realty,  305. 
when  it  passes  by  a  conveyance  of  the  land,  458  et  seq. 
whether  it  may  be  excepted  by  parol  from  the  operation  of  the  deed, 

516. 
not  governed  by  law  of  fixtures,  460. 
when  scraped  up,  is  severed,  70. 

tenant  not  estopped  by  assisting  at  a  sale  of  the  land,  460. 
licensee  not  entitled  to,  461. 
trespass  lies  for  its  removal.  630. 

MANUSCRIPT  REPORTS, 

quaere,  whether  in  the  nature  of  heir-looms,  320. 
MARBLE  SLABS.     See  Meat  Slab. 

held  to  be  furniture,  451. 

held  not  to  pass  under  a  bequest  of  furniture,  476. 

do  not  pass  with  the  land,  435. 
MARINE  RAILWAY, 

a  fixture  passing  with  the  land  on  a  sale  thereof  on  execution,  402. 

MARRIAGE,     See  Eusband  and  Wife. 
MASH-TUB.     See  Tub. 

pass  with  land,  389. 

MASSIVENESS.     See  Size,  Weight. 

MATERIALS.     See  Alieno  Solo,  Building  Materials. 

MATS, 

pass  with  land,  396. 

MAXIMS.    See  the  diferent  ones. 
MEAL-CHEST, 

replevin  for,  628. 

MEANING.     See  Definition. 
of  addition,  10. 

of  all  other  permanent  fixtures,  465. 
of  alteration,  10. 
of  building,  11. 

of  erected  upon  or  affixed  to  the  land,  9. 
of  erections,  10. 
of  fixed  and  attached,  9. 
of  fixed  engine,  12, 
of  fixed  furniture^  7. 
of  fixed  machinery,  11. 
of  fixed  plant,  11,  535. 

of  fixtures  in  Nova  Scotia  bills  of  sale  act,  492. 
of  fixtures  and  appurtenances,  8. 


INDEX.  739 

[references  abb  to  the  bottom  pages.] 
MEANING,  continued— 

of  fixtures  and  fittings,  8. 
of  fixtures  belonging  to  a  chattel,  468. 
of  fixtures  of  every  description,  465. 
of  goods,   12. 

of  goods,  chattels  and  fixtures,  2. 
of  improvement,  9,  10,  11,  246. 
of,  in  the  nature  of  fixtures,  2. 
of  movable  articles,  12. 
of  plant,  536. 
of  repairs,  10. 
of  stock  and  furniture,  8. 
of  store  fixtures,  8,  12. 
of  tenant's  fixtures,  5. 
of  upon  and  over,  9. 
of  work  done  and  fixed,  8. 
of  yard  fixtures,  12. 
MEASUEE  OF  DAMAGES, 

of  tenant  for  destruction  of  building  by  landlord,  195. 

of  mortgagee  for  removal  of  fixtures,  594,  595. 

of  remainderman,  removal  of  fixtures,  595. 

in  replevin,  628. 

in  trespass  quare  clausum,  639,  641. 

in  trespass  de  bonis,  641. 

in  trover,  656. 

in  action  for  breach  of  covenant  to  deliver  up  the  demised  premises, 

etc.,  666. 
in  covenant,  for  failure  to  convey,  255. 
in  trespass  against  railroad  company,  how  affected  by  value  of  tho 

ties  and  rails,  91. 
for  removal  of  sidewalk,  88. 

MEAT-SLAB.     See  Marble  Slab. 

of  marble,  as  between  grantor  and  grantee,  394. 

MECHANICS' LIEN.     Seo  Lien. 

METALS  AND  IMPEOVEMENTS, 

held  not  to  include  an  engine,  245. 

MERGER.     See  Title. 

not  by  landowner  acquiring  ])uiMing,  481. 

when  trade  fixtures  become  part  of  tho  realty,  by  landowner  acquir- 
ing them,  400,  402,  409,   11.'?. 
when  pcrHonal  rcprcsontativo  s<IIh  tin*  land,  417,    IS", 
what  is  not,  as  to   liability  to  pay    fnr   iniprovomontH  of  Hiib-lciwco, 

527. 
rfTo<-t  upon  chattel  mortgagn  of  cmpg,  340. 
of  written  agreement  with  docd,  ffToot  on  crops,  311. 


740  INDEX. 

[REFEnENCKS  ARE  TO  THE  BOTTOM  PAGES.] 

MESNE  PEOFITS.     See  Ejectment. 
METEOR.     Seo  Aerolite. 
METER.     See  Gas-Metcr. 

is  personal  property,  395. 

not  machinery,  560. 

MILITARY   RESERVATION.     See  Public  Land. 
MILLS.     See  Buildings,  Taxation. 

removable  as  trade  fixtures,  142. 

pass  on  a  conveyance  of  the  land,  391,  393. 

effect  of  the  use  of  the  term  ' '  mill "  in  a  conveyance,  462. 

declaration  in  replevin  for,  621. 

insurance  of,  covers  machinery,  463. 
MILL-CHAIN,  DOGS  AND  BARS.     See  Chain. 

when  fixtures,  23. 
MILL-SAWS  AND  BELTING.     See  Belting,  Saws. 

parcel  of  the  freehold,  though  temporarily  severed,  46. 

otherwise,  if  never  set  up  nor  used,  54. 

pass  on  a  conveyance  of  the  realty,  391,  392. 
MILL-SPINDLE, 

replevin  for,  628. 
MILL  STONES, 

fixtures  by  constructive  annexation,  30,  46. 

pass  by  lease  or  conveyance  of  mill,  46,  392,  453. 

when  recoverable  by  mortgagee,  74. 

removable  as  trade  fixtures,  142. 

included  within  the  term  * '  improvements, ' '  243. 

pass  to  the  heir  vsith  the  realty,  300,  310. 

under  the  N.  Y.  statute,  as  between  heir  and  executor,  312. 

not  goods  and  chattels  within  the  bankrupt  law,  511. 

not  subject  to  distress,  550,  551. 

whether  subject  of  deodand,  679. 

when  personalty,  116. 

mechanics'  lien  allowed  for,  430. 

not  subject  to  levy,  540. 
MIRRORS.     See  Furniture,  Household  Goods,  LooTcing -Glasses. 

set  in  recesses  and  nailed  to  wall,  immovables,  34. 

considered  as  furniture,  and  personalty,  125,  650. 

removable  after  end  of  tenancy,  201. 

trover  for,  650. 

when  "fixed  furniture,"  7. 

when  not  removable,  34. 

when  removable  by  tenant,  142,  197. 

when  pass  with  land,  395,  437,  447. 

mechanics'  lien  not  allowed  for,  430. 

when  go  to  devisee,  473. 


INDEX.  741 

[BEFEBENCES  AEE  TO  THE  BOTTOM  PAGES.] 

MIXED  CASES,  158  et  seq.,  269  et  seq.    See  Trade  Fixtures. 
MONUMENT, 

passes  with  land,  396. 

MOOEINGS, 

occupier  of  when  ratable,  570. 

MOETGAGOR   AND   MORTGAGEE.     See  Lien,   Furniture,   Grantor   and 

Grantee,  Action,  Equity,  Notice. 
rule  between,  same  as  between  grantor  and  grantee,  executor  and 

heir,  378. 
fixtures  pass  by  mortgage  of  realty,  387. 
so,  as  to  tenant's  fixtures,  though  not  mentioned  in  memorandum  of 

deposit,  405. 
80,  as  to  trade  fixtures,  405. 

80,  as  to  fixtures  by  constructive  annexation,  387,  453. 
so,  as  to  statuary,  38. 
80,  aa  to  upper  mill-stones,  453. 
BO,  as  to  a  sun-dial,  38. 
so,  as  to  railroad  rolling-stock,  47. 

contra,  50. 
other  instances  of  fixtures  passing  to  mortgagee,  387. 
fixtures  pass  whether  the  mortgage  be  in  fee,  for  a  term  of  years, 

or  of  a  leasehold  interest  only,  405, 
80,  though  annexed  since  the  execution  of  the  mortgage,  90,  405,  406. 
presumption    that   subsequent   improvements   by   the   mortgagor   are 

for  the  benefit  of  the  inheritance,  not  an  absolute  one  in  some 

states,  410,  414,  417,  418,  419,  420,  421. 
where  mortgage  is  considered  a  conveyance,  fixture  may  not  be  re- 
moved by  mortgagor,  406. 
in  such  a  case  the  mortgagee  may  recover  fixtures  severed  without 

his  consent,  71,  73. 
but   not   where  sold   and   transferred    by   the  indorsement   of  a   bill 

of  lading,  71,  643. 
rights  of  mortgagee  in  case  of  severance  where  mortgage  is  a  mere 

security,  72,  73. 
tenant  can  not,  by  selling  or  mortgaging,  convey  a  grcator  right  to 

fixtures  than  he  possesses,  144. 
fixtures  annexed  by   tenant  of  mortgagor  under  a  lease  subsequent 

to  the  mortgage,  pass  on  a  forocIoHuro  sale,  412. 
effect  of  chattel  mortgages,  and  agreemcntH  between  mortgagor  and 

third  persons,  that  the  thing  annexed  shall   remain  personalty, 

105,  408,  414  et  seq.,  483,  484,  611. 
right  of  removal  preserved  if  mortgagee  of  the  land  consents  to  such 

an  agreement,  420. 
such  agreement  binding  as  between  third  parties,  420. 
mortgagee  in   poBseHsion  makoH  imi>rovemontH  at  his  peril,  41S,  422. 
whether  he  may  remove  buildings  erected  by  him,  422. 


742  INDEX. 

[KEFEUENCES  ABE  TO  THE  BOTTOM  PAGES.] 

MORTGAGOR  AND  IMORTGAGEE,  continued- 
right  to  crops,  345,  348. 

mortgage  covers  precious  metals  imbedded  in  smelting  furnace,  399. 

mortgage  covers  trade  fixtures  subsequently  purchased,  409. 

mortgage  covers  immovables,  399. 

mortgage  covers  everything  granted  by  the  mortgagee  to  the  mort- 
gagor, 471. 

mortgage  covers  fixtures  which  do  not  pass  under  a  void  sale,  479. 

mortgage  attaches  to  building  erected  by  one  tenant  in  common,  410, 
414. 

mortgagee  of  a  tenant  in  common  acquires  his  lien  against  a  co- 
tenant  for  improvements,  410. 

right  of  mortgagee  to  nursery  stock,  338,  421. 

mortgage  does  not  cover  machinery  on  exhibition,  415. 

mortgage  does  not  cover  school-house,  89. 

stepping  stone  not  an  improvement,  10. 

mortgage  does  not  cover  machinery  because  the  building  and  ma- 
chinery would  bring  more  if  sold  together,  595. 

clearer  evidence  required  as  to  articles  subsequently  annexed,  415. 

mortgagee  not  estopped  by  knowledge  of  improvements  being  made, 
409,  412,  423. 

rights  of  mortgagee  as  to  fixtures  removed,  70,  71,  72,  73,  616,  619. 

rights  of  mortgagee  to  funds  from  a  sale  of  fixtures,  412. 

where  mortgagee,  under  a  mistake  of  fact,  consents  to  an  order  for 
the  sale  of  machines,  it  will  be  set  aside,  71. 

right  to  trees  cut,  71,  72. 

right  of  mortgagee  superior  to  claims  of  lienors,  408,  409,  432. 

right  of  mortgagee  superior  to  claim  of  one  delivering  machinery 

on  trial,  408. 
right  of  mortgagee  inferior  to  claims  of  creditors  to  building  placed 

by  husband  upon  wife 's  land,  414. 
second  mortgagee  requiring  insurance  of  machinery  which  is  a  part 

of  the  mill,  acquires  no  superior  right  to  the  money  in  event  of 

loss,  71. 
mortgagee  not  estopped  by  unperformed  conditions,  520. 
mortgagee  loses  his  priority  to  crops  by  buying  the  land,  340. 
mortgagee  can  not  maintain  trover  for  manure,  642. 
mortgage  of  fixtures  is  a  mortgage  of  realty,  502. 
mortgage  of  a  building  covers  the  land,  398. 
how  sale  should  be  made  where  there  is  a  mortgage  on  the  land,  and 

a  chattel  mortgage  upon  machinery,  419. 
selling  land  separately  from  crops,  345,  349. 
mortgagee  of  a  leasehold  is  not  entitled  to  the  proceeds  of  fixtures, 

405. 
Chattel  Mortgage, 

of  crops,  without  writing,  is  valid,  368,  371. 


INDEX.  743 

[references  are  to  the  bottom  pages.] 

MORTGAGOR  AND  MORTGAGEE,  continued— 
Chattel   Mortgage — Continued — 

of  trade-fixtures  to  be  affixed,  is  valid,  144. 

of  future  crops,  when  valid,  367. 

of  steam  elevator,  operates  as  a  mortgage  on  realty,  35. 

works  constructive  severance,  67. 

of  grass,  effect,  67. 

constructive  severance  by,  ceases  when  chattel  mortgage  expires,  68. 

as  evidence  of  intent,  57.  58,  136,  420,  471. 

estoppel  by,  50,  422. 

for  greater  caution,  effect,  472. 

not  defeated,  by  annexation  of  article  to  land,  85. 

right  of  mortgagee  of  crops  against  landlord,  359. 

right  of  mortgagee  of  fixtures  against  landlord,  209,  229. 

right  of  mortgagee  of  fixtures  against  a  grantee  of  land,  105,  384. 

right  of  mortgagee  of  fixtures  against  mortgagee  of  land,  349. 

right  of  mortgagee  of  crops  against  mortgagee  of  land,  348. 

of  crops  becomes  prior  by  mortgagee  of  the  land  buying  the  land, 
340. 

right  of  mortgagee  of  nursery  stock  against  mortgagee  of  the  land, 
338. 

of  crops,  subordinate  to  liens  upon  the  land,  342. 

of  crops,  effect  of  a  recovery  of  the  land  in  ejectment,  360. 

of  fixtures  upon  homestead  invalid,  67,  383,  539. 

when  assignee  must  take  constructive  notice  of,  480. 

right  of  mortgagor  of  a  vessel  to  dispose  of  old  material,  74. 
MOTIVE  POWER.     See  -Steam  Engine,  Water-Wheel. 

slight  annexation  sufficient,  22. 

is  realty,   61. 
MOULDING  MACHINES.     See  Machinery. 

when  pass  with  land  to  the  grantee,  392,  442. 
MOVABLE  ARTICLES.     See  Meaning. 

meaning  of,  12,  251, 

MOVAI^LES  AND  IMMOVABLES.     Seo  Immovable. 

regulated  by  statute  in  Louisiana,  34. 

vault-doors  and  lining,  mirrors,  dwelling  and   gin-houso,  held  to  bo 
immovables,  34. 

when  building  material  arc  movables,  51. 

when  railway  materials  are  movables,  89. 

when  crop  is,  364,  366. 
MUD-VALVE, 

a  removable  fixture,  237. 
MULE-BEAM  ERS, 

whether  they  pass  to  the  grantee  with  the  realty,  441. 
MULES, 

being  machines  for  «ipiiining  rotton,  whether  Bubjeot  to  distrosfl,  553. 


744  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

NAME.     See  Trade-Mark. 

of  building,  cannot  bo  carried  away,  13. 

carved    in    stone,    grantor    of    building    cannot    compel    grantee    to 
erase,  13. 
NEW  YORK, 

statutes  of,  relating  to  fixtures,  311  et  seq.,  473. 
NOTICE, 

what  is,  4S0,  490. 

hire-plate  is  not,  487. 

possession  of,  by  agent,  is,  482. 

possession  of  grantor  is  not,  482. 

possession  of  grantee  of  trees,  is,  376. 

possession  of  one  partner,  481. 

possession  of  tenant,  527. 

proceeds  in  probate  court,  not,  482. 

as  affecting  grantee  of  the  land,  401. 

rights  gained  by  lack  of,  are  not  affected  by  lack  of  knowledge  as 

to  fixtures,  487. 
lack  of,  by  mortgagee  of  land  to  which  a  building  is  removed,  does 
not  affect  right  of  mortgagee  of  land  whence  building  taken,  73. 
to  grantee  of  land,  of  a  previous  sale  of  trees,  effect,  376. 
by  sheriff,  can  not  affect  right  of  a  grantee  of  land  to  the  crops,  341. 
tenant 's  lack  of,  of  prior  sale  of  a  foundation  upon  the  land,  effect, 

75. 
rights  of  a  seller  on  condition  preserved  by,  479. 
holder  of  bill  of  lading  for  a  fixture  severed  from  mortgaged  land, 
is  protected,  71. 
Eecording  Acts, 

recorded  chattel  mortgage  protects  where  article  annexed  to  land  by 

a  third  party,  85. 
sale  of  frucius  industriales  need  not  be  recorded,  372. 
constructive  notice  by  record  of  chattel  mortgage  as  between  chattel 

mortgagee  and  holder  of  mechanic's  lien,  425. 
possession  of  tenant  suificient  to  put  purchaser  of  the  land  upon  in- 
quiry as  to  the  tenant's  rights,  481. 
of  the  right  to  annexations  upon  the  land  of  another  under  agree- 
ment that  the  same  shall  remain  personalty,  as  between   bona 
fide  purchasers  or  mortgagees  of  the  land  and  the  party  entitled 
under  such  agreement,  483  et  seq. 
limitation  upon  the  effect  of  such  agreement,  484. 
actual  severance  or  notice  of  agreement  to  sever,  necessary  in  order 
to  deprive  bona  fide  purchaser  of,  or  creditor  levying  upon,  the 
land,  of  the  right  to  fixtures,  485. 
record  or  filing  of  a  chattel  mortgage  not  sufficient  to  deprive  a  pur- 
chase or  mortgage  of  the  realty  of  its  bone  fide  character,  486. 
contra,  488. 


INDEX.  745 

[KEFEBEXCBS  ABE  TO  THE  BOTTOM  PAGES.] 

NOTICE,  continued- 
mortgage  of  realty  and  fixtures  appurtenant  thereto  need  not  be  re- 
corded as  a  chattel  mortgage,  469,  487,  492. 

trade  building  of  tenant  subject  to  the  same  rule  as  personalty  in 
respect  of  the  recording  of  liens,  500. 
Bills  of  Sale  Act,  490. 

meaning  of  "fixtures"  in,  491,  492, 

registry  unnecessary  where  the  fixtures  pass  with  and  as  a  part  of 
the  realty,  492,  499. 

otherwise,  where  the  intention  is  that  the  fixtures  shall  pass  sepa- 
rately from  the  freehold,  493,  499. 

as,  where  such  intention  appears  by  the  use  of  a  separate  instrument, 
493. 

80,  where  the  fixtures  pass  by  virtue  of  a  second  operative  part  of 
the  deed  and  not  as  parcel  of  the  land,  470,  494,  499. 

BO,  where  such  intention  is  evidenced  by  the  conveyance  of  an  abso- 
lute interest  in  the  fixtures,  being  different  from  the  interest 
conveyed  in  the  land.  494. 

80,  where  there  is  a  mortgage  by  way  of  underlease  with  a 
power  to  the  mortgagee  to  seize  and  sell  the  fixtures  absolutely, 
494  et  seq. 

registry  not  necessary  where  the  mortgagee  has  no  power  to  sever 
the  fixtures  and  sell  them  separately,  496. 

registration  necessary  in  the  case  of  chattels,  though  in  a  state  of 
quasi  annexation  to  the  land,  590. 

NIIESERIES.     See  Trees. 

trees  kept  for  sale  in,  removable  as  trade  fixtures,  162. 

but  not  such  as  are  kept  for  the  fruit  they  yield,  163. 

not  removable  after  expiration  of  tenancy,  199. 

trees,  etc.,  in,  as  between  heir  and  executor,  3.17. 

trees,  etc.,  not  subject  to  distress  under  11  dvo.  II.,  ch.  19,  365. 

trees,  etc.,  not  subject  to  fi.  fa.,  541. 

trees,  etc.,  trespass  do  boitis  for,  635. 

trees,  etc.,  when  pasH  with  land,  338,  421. 

trees,  etc.,  subject  to  levy,  542. 

trees,  etc.,  how  taxed,  565. 

trees,  etc.,  when  mortgagee  of  land  estopped  to  claim,  120. 

OBSERVATORY, 

removable   by   incumbent,   288. 
OFFICE.     See  Counting-nonm. 

declaration  in  replevin  for,  621. 

is  a  trade  fixture,  142. 
OFFICE  FIXTURES,  379. 
OFFICE  FT'RNlTrRE.     Sec  Furniture,  DrsJc. 

not  fixtures,  53. 


746  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 
OIL, 

not  a  fixture,  52. 
OILCLOTH, 

passes  to  grantee  of  land,  396. 
ONUS  PROBANDI.     See  Evidence. 
OPEN  SPACES  ACT,  ENGLAND. 

what  is  a  building  within,  11. 

OPERA  CHAIRS.     See  Chairs,  Stools,  Theaters. 
are  trade  fixtures,  141. 

OPTION.     See  Valuation. 

to  purchase,  as  affecting  right  to  remove  fixtures,  384. 

ORAL  EVIDENCE.     See  Evidence,  Statute  of  Frauds. 
agreement  as  to  trade  fixtures  valid,  219,  220. 

ORDER  AND  DISPOSITION.     See  Bankruptcy. 
ORGAN, 

is  a  fixture  by  weight,  38. 

in  a  church  belongs  to  whom,  326. 

in  a  church  when  passes  by  a  sale  of  the  realty,  437,  450. 

ORNAMENTAL  AND  DOMESTIC  FIXTURES.     See  Buildings,  Eccles- 
iastical Persons. 

defined,  184. 

rule  applies  to  an  office,  185. 

grounds  upon  which  removal  thereof  is  allowed,  185. 

not  so  favorably  regarded  as  respects   right  of  removal,   as  trade 
fixtures,  185. 

tests  as  to  whether  removable,  185,  190,  191. 

permanent  additions  not  removable,  186  et  seq. 

each  case  dependant  on  its  own  circumstances,  188. 

whether  removable,  a  mixed  question  of  law  and  fact,  190,  191 

statutory  rule  in  Louisiana,  194. 

as  between  tenant  for  life  or  in  tail  and  remainderman,  etc.,  276 
et  seq. 

D'Eyncourt  v.  Gregory,  277  et  seq. 

rule  as  to  what  is  removable  as  between  said  parties,  283. 

rule  as  to  permanent  buildings  not  removable,  283. 

as  between  executor  and  heir,  308. 
ORNAMENTS, 

of  bishop 's  chapel,  in  nature  of  heir-looms,  287,  321. 

OVENS.     See  Coke-Ovens. 

aflBxed  by  owner  of  freehold  go  to  the  heir,  310. 
aflBxed  by  owner  of  freehold  not  subject  to  fi.  fa.,  537. 
when  removable,  140,  146,  152. 
pass  with  land,  462. 


INDEX.  747 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES. 1 

OYSTERS, 

when  the  subject  of  property,  329,  668. 

PAUNGS, 

as  between  heir  and  executor,  298,  300. 

PANS.     See  Salt-Pans. 

PAPERrMILLS.     See  Mills. 

right  to  machinery  in,  as  between  mortgagor  and  mortgagee,  438. 

PAEOL  EVIDENCE.     See  Evidence,  Statute  of  Frauds. 

PARTICULAR  ESTATE.     See  Bemainderman. 
right  as  to  crop,  353. 

PARTITION.     See  Joint  Tenants,  Tenants  in  Common. 
rule  in,  same  as  between  grantor  and  grantee,  17. 
right  to  improvements  made  by  one  tenant,  414. 
right  to  crops,  340,  346. 
of  crops,  classed  as  personalty,  372. 
second  and  third  stories  are  realty,  380. 
oral,  of  line  fence,  is  valid,  514,  515, 

PARTITIONS, 

are  fixtures,  8,  127. 

seized  on  /i.  fa.  against  tenant,  133. 

when  removable  by  tenant,  139,  142,  146. 

pass  ^"ith  land,  396. 

mechanics'  lien  allowed  for,  429. 

replevin  does  not  lie  for,  621. 

PARTNERS, 

when  erections  upon  land  of  one  become  realty,  96,  109,  110,  385, 

623. 
effect  of  annexation  of  fixtures  to  land  owned  by,  109,  400,  413. 
effect  of  one  acquiring  entire  interest  in  land  and  fixtures,  109,  400. 
when  possession  of  one  is  notice,  481. 

PARTRIDGES, 

when   pass   to   the  heir,   328. 

when  pass  to  the  executor,  330. 
PARTY-WALL,  105,  396.  See  Wall. 
PASSENGER-ELEVATOR.     See  Elevator. 

PATENT.     Seo  Publio  Land. 

infringement  of,  by  machinery  annexed   to   the  land,   Is  a   breach   of 
a  covenant  against  incumbrances,  484. 

PATTERNS.     Seo  Tooh. 

not  pass  with  land,  434,  409. 
PAUPER.     Seo  Settlement. 
PAVEMENT,  88,  133.    See  Sidewalk. 


748  INDEX. 

[references  abb  to  the  bottom  faqes.] 

PEACHES.     See  Fruit. 

are  subject  to  levy,  542. 
PEAT, 

in  process  of  curing  is  personal  property,  332. 
PENNONS,  320,  324. 
PERSONAL  PROPERTY.     See  Goods,  Chattels. 

does  not  include  removable  buildings,  12. 

does  not  cover  wheat  constructively  severed,  67. 

PERSONAL  REPRESENTATIVE.     See  Heir  and  Executor. 

PEWS,  325,  326. 

PHEASANTS, 

when  pass  to  the  heir,  328. 

when  pass  to  the  executor,  330. 
PIAZZA.     See  Porch,  Veranda. 
PICKETS, 

as  between  grantor  and  grantee  of  the  realty,  433. 
PICKING-MACHINES, 

not  fixed,  are  chattels,  17. 
PICTURES.     See  Portraits. 

removable  by  tenant  for  life,  276,  278. 

not  fixtures,  308,  452. 

ancient  pictures  said  to  be  in  the  nature  of  heir-looms,  320. 
PIER.     See  Dock,  Wharf,  Bridge. 

occupier  of,  when  ratable,  570,  572. 

not  removal  by  tenant,  146. 

damages  allowed  for  in  condemnation  proceedings,  89. 

dower  in,  297. 

not  subject  to  levy,  538. 

how  taxed,  558. 

PIER-GLASSES.     See  Mirrors. 

held  to  be  furniture,  447. 

removable  by  tenant  for  life,  276. 

do  not  pass  with  the  land  to  the  grantee,  447. 
PIGEONS, 

when  pass  to  executor,  330, 

the  subject  of  larceny,  330. 
PILE, 

in  bed  of  the  Thames,  95,  645. 
PILLARS, 

of  brick  on  dairy  floor,  not  removable  by  tenant,  176. 

not  removable  by  agricultural  tenant,  177. 
PINERIES, 

removable  by  incumbent,  287,  290. 


INDEX.  749 

[EEFEBENCES  ABE  TO  THE  BOTTOM  PAGES.] 

PIPES.     See    Gas-Pipes,    Water-Pipes,    Drain-Pipes,    Plumbing,    Heating- 

Pipe. 
removable  by  tenant,  140,  142,  187. 
right  to,  as  between  grantor  and  grantee  of  the  realty,  389,  392,  393, 

396,  452. 
of  iron,  for  heating  purposes,  etc.,  as  between  grantor  and  grantee 

of  the  realty,  390,  392,  395. 
when  pass  by  chattel  mortgage,  as  against  mortgagee  of  the  realty, 

418. 
in  paper  mill  will  not  subject  to  extent,  538. 
for  conveying  water  or  gas,  occupier  of,  ratable,  568. 
larceny  of  copper  pipe,  673. 
mechanics'  lien  allowed  for,  428,  431. 
covered  by  insurance,  379. 
not  subject  to  levy,  538. 
are  personalty,  395. 
are  not  machinery,  560. 
connection  by,  is  not  annexation,  436,  578. 

PITS, 

of  frame-work  on  brick  foundation,  when  removable,  187, 

PIT-WHEEL, 

not  subject  to  extent,  528. 

PLANK.     See  Building  Materials,  Lumber,  Floor,  Sidewalk. 

used  as  a  floor,  held  to  pass  by  a  conveyance  of  the  realty,  453. 
as  trade  fixtures,  143. 

PLANING-MACHIXE.     See  Machinery. 

not  attached  to  the  freehold,  are  personalty,  20,  53,  381. 
not  attached  to  the  freehold,  subject  to  fi.  fa.,  20. 
when  pass  with  the  land  to  the  grantee,  381,  392,  434,  438,  442. 
when  pass  by  chattel  mortgage  as  against  mortgagee  of  the  realty, 
418. 
PLANT.     See  Fixed  Plant,  Heating  Plant,  Electric  Plant,   Jicfrigcrating 
Plant. 
meaning  of,  536. 

PLANTATION.     Seo  Devises. 

sale  of,  includes  fences,  462. 

PLANTS.  See  Wive  Plants,  Strauberry-Bcds. 
upon  public  lands,  when  personalty,  95. 
do  not  pass  with  land,  435. 

PLATFORM, 

is  a  trade  fixture,  143. 

PLAYTTOUSE.     Seo  Puihlinns. 

docs  not  pass  with  land,  446. 


750  INDEX. 

[REFKUKNCES  ARE  TO  THE  BOTTOM  PAGES.] 

PLEADING  AND  PRACTICE.    See  Waste. 
averment  in  bill  to  restrain  waste,  602. 
in  proceedings  to  enforce  mechanics'  lien;   description  of  floating 

dock,  639. 
in  case  in  the  nature  of  waste  brought  by  mortgagee,  593,  596. 
performance  of  covenant,  how  negatived,  661. 

in  replevin,  things  replevied  how  described  in  declaration,  621,  622. 
departure  in,  in  replevin  for  a  lime-kiln,  623. 
in  trespass,  fixtures  how  to  be  described,  637,  638. 
in  trover,  articles  how  described  in  declaration,  643,  651,  652,  653. 
in  assumpsit,  price  of  fixtures  not  recoverable  under  a  count   for 

goods  sold  and  delivered,  124,  662. 
price  of  fixtures,  when  recoverable  under  a  count  upon  an  account 

stated,  663. 
general    form    of   pleading    in    actions   upon   contracts    relating   to 

fixtures,  when  insufficient,  664. 
meaning  of  "goods,  chattels  and  fixtures"  in  declaration,  2. 
what  is  sufficient  answer  in  foreclosure  of  a  lien  on  a  house  which 

is  removable,  415. 
what   is   insufficient   answer   by  buyer  in   foreclosure   of   a   chattel 

mortgage,  489. 
what  is  sufficient  defense  in  trespass  for  removing  a  house,  214. 
PLUMBING.     See  Pipes. 

when  removable  by  a  tenant,  141,  194. 

POLES.    See  Posts — Telegraph,  Telephone,  Electric  Fixtures, 
when  may  be  re-taken  from  a  staging,  81. 
when  pass  with  land,  397,  435. 
mechanics'  lien  allowed  for,  431. 
on  street,  when  subject  to  levy,  546,  547. 
how  taxed,  562. 

POLICY.    See  Insurance. 

PONTOONS, 

whether  occupation  of  land  is  enhanced  by,  570. 

POOR  RATES.     See  Machinery. 

statute  of  43  Eliz.,  ch.  2,  §  1,  567. 

are  personal  charges  in  respect  of  lands,  and  the  occupier  ratable 

by  whatever  tenure  he  holds,  567. 
what  constitutes  an  occupier  of  land,  567,  568. 
what  annexations  have  been  considered  as  land,  or  as  increasing  the 

ratable  value  of  land,  568  et  seq. 
real  property,  how  rated  as  to  value,  572. 
whether  in  order  to  render  a  chattel  subject  to  rate  upon  land,  it 

must  be  annexed  thereto,  574. 
where  machinery  is  so  annexed  as  to  become  a  fixture,  the  premises 

should  be  rated  in  accordance  with  their  enhanced  value,  577. 


INDEX.  751 

[KEFEKEXCES  ABE  TO  THE  BOTTOM  PAGES.] 

POOR  EATES,  continued- 
profits  arising  from  a  mere  chattel  ought  not  to  enhance  rate  upon 
lands  and  houses  only,  557,  579. 

principal  not  ratable,  accessory  not  ratable,  581. 

qualification  of  this  rule,  581. 
POECH,     See  Veranda. 

is  not  a  building,  11. 

an  addition  within  the  N.  J.  Mechanics'  Lien  Law,  10. 
PORTABLE  ENGINE.     See  Steam  Engine. 

removable  by  lessee,  138. 

not  subject  to  levy,  537. 

PORTRAITS.     See  Pictures. 

removable  by  tenant  for  life,  278. 

ancient  portraits  said  to  be  in  the  nature  of  heir-looms,  320. 

POSSESSION.    See  Notice. 

POSTS.     See  Telegraph,  Wires,  Lamp-Posts. 

hauled  upon  the  form  for  a  fence,  not  realty,  53. 

not  removable  by  tenant,  146. 

POST-TRADERS.     See  Public  Land. 

POTATOES, 

are  personalty,  369. 

POTENTIAL  EXISTENCE.     See  Crops. 

PRACTICE.     See  Pleading  and  Practice. 

PRE-EMPTION,  353.     See  Public  Land. 

PRESSES.     See  Cotton  Press,  Printing  Press,  Hydraulic  Presses,  Burglary. 
not  waste  to  remove  unless  fixed,  126,  604. 
injunction  to  prevent  removal  of,  604. 
pass  to  heir  with  the  realty,  300,  303. 
in  dye-house,  right  to  as  between  tenants,  in  common,  380. 
cotton-press,  right  to  as  between  grantor  and  grantee,  etc.,  of  the 

realty,  391,  444. 
cider-press,   right   to  as  between   grantor   and   grantee,   etc.,   of   the 

realty,  391, 
paper-presses,  right  to  as  between  grantor  and  grantoo,  etc.,  of  tho 

realty,  438. 
trimming-press,   right   to   as  between   grantor  and    grantee,   etc.,   of 

the  realty,  438. 
held  not  to  pass  with  tho  land,  such  not  being  the  intention  of  tho 

grantor,  466. 
not  subject  to  extent,  538. 
when  pass  with  land,  410,  434. 
arn  trado-fixturofl,  143. 
PRESUMPTION.     See  Evidence. 


752  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

PEINTING-PEESS.     Sco  Presses. 
passes  with  land,  391. 

PEIVILEGE.    See  Lien. 
PRODUCT, 

meaning  of  in  Stat.  11  Geo.  II.,  ch.  19,  sec.  8,  365,  550. 
PROHIBITION.     See  Injunction,  Estrepement. 

writ  of  at  common  law,  598. 

writ  of  the  origin  of  relief  by  injunction,  599. 

writ  of  lay  against  whom,  599. 

writ  of  now  obsolete,  601. 
PROOF.     See  Evidence. 

PUBLIC  LAND.     See  Alieno  Solo. 

improvements  upon,  are  chattels  real,  95. 

improvements  upon,  when  removable,  19,  95,  97,  113,  385. 

improvements  upon,  whether  consideration  for  a  promissory  note,  95. 

improvements  upon,  not  subject  to  levy,  538. 

improvements  upon,  how  taxed,  558,  559,  562. 

crops  upon,  353. 

vines  upon,  are  personalty,  95. 

sawmill  upon,  passes  to  grantee,  91. 

PULLEYS, 

mechanics'  lien  allowed  for,  429. 
PUMPS,     See  Windmills. 

removable  by  tenant,  143,  160,  196. 

alieno  solo,  when  removable,  98. 

in  paper-mill,  not  subject  to  extent,  538. 

as  between  executor  and  heir,  303,  313. 

right  to  as  between  grantor  and  grantee  of  the  realty,  383,  389,  392, 
393,  434,  436. 

when  pass  by  chattel  mortgage  as  against  mortgagee  of  the  realty, 
418. 

erected  by  tenant,  do  not  pass  to  grantee  of  reversion,  479. 

when  ratable  to  the  poor,  577,  580. 

trespass  for,  639. 

mechanics'  lien  allowed  for,  427,  429. 

when  not  a  part  of  the  realty,  107. 

when  not  an  appurtenance  to  a  dredge,  82. 
PUMP-HOUSE.     See  Buildings. 

erected  by  tenant  in  agriculture,  not  removable,  167. 
PUNCHES, 

held  subject  to  fi.  fa.,  543. 
PUNKAHS.     See  Fans. 

pass  with  land,  396. 

PURCHASERS.     See  Grantor  and  Grantee,  Seller  and  Buyer. 


INDEX.  753 

[BEFEBENCES    ABE   TO   THE   BOTTOM   PAGE8.] 
PUEIFIEES, 

in  gas-'^vorks,  ratable,  579. 

PUSEY  HORN, 

descends  to  heir,  321. 
QUESTION  OF  FACT.    See  Evidence. 

whether  an  article  is  a  fixture,  35. 

intention  is,  56. 

■what  is  a  reasonable  time,  213,  218. 
QUESTION  OF  LAW, 

whether  an  article  is  a  fixture,  36. 

to  construe  written  contract,  57. 
QUICQUID  PLANTATUR  SOLO,  SOLO  CEBIT, 

express  the  general  rule  as  to  fixtures,  3,  18,  77,  126. 

Roman  law  on  the  subject,  77. 

exceptions  to  maxim,  80,  90,  127. 

when  to  be  applied,  97. 

different  degrees  of  relaxation  of  the  rule,  138. 

quaere  as  to  whether  relaxed  in  respect  of  agricultural  erections,  167. 

applied  with  most  rigor  between  heir  and  executor,  295,  378. 

the  same  strict  rule  prevails,  also,  between  grantor  and  grantee,  etc., 
378. 

does  not  apply  to  structures  erected  by  a  railway  company,  90. 

does  not  apply  to  leaseholds,  91. 

when  it  does  not  apply  to  public  land,  97. 

RACK, 

in  a  stable,  presumed  to  be  fixed,  652. 

RADIATORS.     See  Heaters. 

not  removable  by  tenant,  187. 

when  pass  with  land,  395,  450. 

mechanics'  lien  allowed  for,  428. 

covered  by  insurance,  379. 

subject  to  leyj,  538. 
RAG-CUTTER.     See  Machinery. 

in  paper-mill,  as  between  mortgagor  and  mortgagee,  438. 

RAILING, 

when  removable  by  a  tenant,  143,  146. 

RAIL-ROAD  IRON,  ETC., 

annexed  to  land  without  consent  of  owner  of  the  land  or  iron,  84. 

alieno  solo,  HH. 

annexed  under  defective  proceedings  for  condemnation  of  land,  117. 

removable  as  trado  fixtures,  142. 

effect  of  severance,  619. 

RAILS.     See  Fences,  Larceny. 

laid  into  a  fence  are  a  part  of  the  freehold,  3ft,  305,  454. 

48 


754  INDEX. 

[kbfebences  are  to  the  bottom  pages.] 

KAILS,  continued — 

of  iron,  laid  by  tenant  in  a  coal  mine,  removable,  140,  161. 

of  iron,  laid  by  tenant  in  a  coal  mine,  subject  to  /i.  fa.,  544. 

cut  on  government  land  do  not  pass  to  grantee  of  the  land,  434. 

laid  into  a  fence  pass  with  the  land  to  the  grantee,  454. 

laid  into  a  fence,  right  to,  as  between  tenant  and  the  grantee  of  the 
land,  484. 

lying  on  the  ground  cannot  be  included  in  a  sale  of  land  by  parol 
evidence,  516. 

when  do  not  pass  with  the  land,  435. 

may  be  personalty,  621. 
RAILWAY-CARS.     See  Bolling-Stoclc. 

RAILWAY-STATION.     See  Building. 

RAILWAY-TRACK.     See   Marine   Railway,    Tramway,   Electric   Bailway, 

Embanlcment. 
alieno  solo,  88. 
when  not  an  immovable,  89. 
when  passes  on  sale  of  the  land,  390,  403,  463. 
whether  subject  to  a  mechanics'  lien,  432. 
how  taxable,  562,  563. 
as  enhancing  ratable  value  of  realty,  577, 

when  conveyance  of,  requires  registry  under  Bills  of  Sale  Act,  492. 
not  subject  to  distress,  552. 
not  goods  and  chattels,  502. 
when  removable,  114,  119. 
right  to  remove  lost  by  abandonment,  215. 
right  to  remove  lost  by  delay,  215. 
is  a  trade  fixture,  142. 
not  removable  by  a  licensee,  385. 

when  covered  by  a  mortgage  of  the  land,  90,  410,  414. 
when  damages  allowed  for  in  condemnation  proceedings,  89. 
goes  to  executor,  273,  284. 

does  not  pass  upon  recovery  of  the  land  in  ejectment,  91,  659. 
ejectment  for,  660. 

whether  liable  for  special  assessments,  563. 
when  value  of  should  be  deducted  from  injury  done  farm  in  action 

of  trespass,  91. 
in  city  street,  not  personalty,  546. 
in  city  street,  belongs  to  city,  88. 
in  city  street,  mechanics'  lien  not  allowed  for,  431. 
in  city  street,  how  taxable,  562. 
switchback  railway  is  a  chattel,  12. 

RANGES.    See  Stoves. 

aflBxed  by  owner  of  freehold,  go  to  the  heir,  310. 

affixed  by  owner  of  freehold,  not  subject  to  fi.  fa.,  537. 


INDEX.  -  755 

[BEFEBBNCE3  ABU  TO  THE  BOTTOU  FAOES.] 

RANGES,  continued — 

affiled  by  tenant,  not  subject  to  distress,  552. 

are  trade  fixtures,  139. 

when  pass  with  land,  389,  395,  396,  450. 

removable  by  vendee  of  land  under  contract,  383. 

when  mechanics'  lien  allowed  for,  428,  429. 
RE-ANNEXATION,     See  Annexation. 

by  agreement,  68. 

what  shows  intent  to  reannex,  69. 
REASONABLE  TIME.    See  Eemoval. 

what  is,  213,  224. 
RECEIVER.     See  Equity. 
RECORDING  ACTS.     See  Notice. 

REDEMPTION, 

of  land  from  execution-sale,  creditor  can  claim  articles  severed  by 
agreement,  68. 

crops  pass,  345. 
REELS, 

whether  pass  with  the  land  to  the  grantee,  441. 
RE-ENTRY.     See  Landlord  and   Tenant,  Forfeiture,  Abandonment,   Sur- 
render. 

by  landlord,  right  of  removal  is  lost,  210. 
REFORMATION.     See  Equity. 
REFRIGERATING  MACHINE.     See  Machinery. 

passes  with  land,  393. 
REFRIGERATING  PLANT, 

when  unpaid  seller  reserving  title  is  protected,  105. 

REFRIGERATORS, 

not  romovablo  by  tenant,  146. 
not   rated  as  realty,  577. 

REGISTERS, 

not  removable  by  tenant,  146. 

mechanics'  lien  allowed  for,  428. 
REGISTRY  ACTS.     See  Notice. 
REMAINDERMAN.    See  Particular  Estate,  Tenant  for  Life. 

right  to  crop  as  against  holder  of  a  particular  estate,  353. 

can  enjoin  life  tenant  againKt  waste,  606. 

can  bring  aHsumpsit  against  life  tenant  for  severed  fixturcH,  662. 

not  bound  by  jigrcemontH  of   life  tenant,  524. 

minor  life  tenant,  when  entitled  to  relief  agninst,  524. 
REMEDIES.     Sec  Action,  Equity. 

for  dilapidation,  292. 

by   recaj)tion   of  thing  sevprofl,  without   prorofm,  61 «. 

for  preventing  the  exercise  of  the  right  to  remove  flxturen,  649. 


756  INDEX. 

[KEFEUBNCES  ABB  TO  THE  BOTTOM  PAGES.] 

REMOVABLE  FIXTURES,  1,  3,  5,  6. 

REMOVAL.     See  Annexation,  Trade  Fixtures,  Covenants  to  Bepair,  Sev- 
erance, Tenant  for  Life. 

nature  of  tenant's  right  of  removing  fixtures,  121,  122 
an  exception  to  the  general  rule  of  law,  121, 
when  right  of,  must  be  exercised,  197  et  seq. 

when  right  of,  must  be  exercised  in  cases  between  representatives 
of  tenant  for  life,  etc.,  and  remainderman,  and  in  the  case  of 
ecclesiastical  persons,  293. 
right  of,  may  be  exercised  during  the  tenancy,  but  not  after,  197, 

199. 
dicta  to  the  contrary,  200. 
grounds  of  rule,  198. 

right  may  be  extended  by  oral  agreement,  199,  220. 
right  may  be  extended  but  not  as  against  a  subsequent  incoming 
tenant  not  privy  thereto,  unless  agreement  is  so  executed  as  to 
bind  the  land,  221,  222. 
may  remove  after  end  of  tenancy,  when  wrongfully  prevented  by 

landlord  from  removing  during  the  term,  202. 
may  remove  after  end  of  tenancy,  when  prevented  during  the  term 

by  injunction  sued  out  by  landlord,  202. 
of  fixtures  by  tenant  holding  over,  203,  259. 
rule  governing  such  cases,  203-207. 

rule  that  fixtures  must  be  removed  during  term  applies  where  ten- 
ancy is  determined  by  act  of  tenant,  207. 
rule  that  fixtures  must  be  removed  during  term  applies  where  ten- 
ancy is  determined  by  act  of  tenant,  as  by  surrender  of  the 
lease,   207. 
rule  that  fixtures  must  be  removed  during  term  where  tenancy  is 
determined  by  act  of  tenant,  will  not  prejudice  third  parties, 
208,  229. 
rule  applicable  to  cases  of  forfeiture  of  lease,  210,  211. 
rule  subject  to  exception  where  tenancy  is  of  uncertain   duration, 

212. 
what  is  a  reasonable  time  for,  212. 
buildings  sold  by  owner  of  land  to  be  removed  by  a  certain   day, 

not  forfeited  by  failure  to  remove  on  that  day,  68. 
of  annexation   alieno  solo,  Britton's   remarks   concerning,    79. 
property   annexed   to   another's  land   under   license,   not   within   the 
rule  requiring  fixtures  to  be  removed  by  tenant  during  the  term, 
214. 
party  removing  probably  liable  in   trespass   for  subsequent   entry, 

214. 
of  trees  in  a  nursery,  when  to  be  made,  215. 

where  lease  provides  for  removal  of  fixtures  at  end  of  term,  lessee 
may  remove  during  its  continuance,  103,  227. 


INDEX.  757 

[REFEBENCES  ABE  TO  THE  BOTTOM  PAGES.] 

REMOVAL,  continued- 
right  of,  valid  as  against  assignee  of  land  with  notice,  106. 

lessea  can  convey  no  greater  right  of,  than  he  possesses  himself, 
144,   145,   213. 

special  agreements  in  relation  to  removal  of  fixtures,  103,  215  et  seq., 
472. 

right  of,  subject  to  control  by  agreements  between  the  parties,  215 
et  seq.,  242. 

such  agreements  not  within  Statute  of  Frauds,  109,  219. 

but  parol,  contemporaneous  evidence  inadmissible  to  contradict,  etc., 
a  valid,  written  instrument,  219. 

exception   to   the   rule,   219. 

agreements  allowing  time  for,  relate  to  expiration  of  lease  by  its 
own  limitation,  and  not  by  act  of  lessee,  225. 

landlord  cannot  confer  right  of  removal  as  against  his  remainder- 
man,  226. 

in  order  to  entitle  lessee  to  remove,  he  must  have  kept  all  condi- 
tions precedent,  218,  228,  229,  231,  242. 

lessor's  interest  in  fixtures  agreed  to  be  left  on  the  land,  224. 

agreement  allowing  tenant  to  remove  fixtures,  not  to  be  construed 
to  authorize  removal  causing  material  injury  to  the  landlord's 
property,  unless  such  appears  to  be  the  clear  intention  of  the 
parties,   231. 

tenant  may  hold  "without  impeachment  of  waste,"  232. 

clause  authorizing  use  of  steam  engines,  etc.,  authorizes  their  re- 
moval, 232. 

effect  of  non-happening  of  contingency  changing  tenant's  right  of 
removing  fixtures,  228,  232. 

effect  upon  right  of,  of  contracts  subsequent  to  the  demise,  252 
et  teq. 

effect  upon  right  of,  of  agreement  for  entry  of  judgnicut  in  eject- 
ment against  the  tenant  with  stay  of  execution,  253. 

ri^ht  of  removing  fixtures  lost  by  accepting  new  lca.so  without 
reservation  of  the  fixtures,  254. 

in  Buch  case  covenants  to   repair,  etc.,  include  the  fixtures,   2r)S. 

right  of  removing  not  lost  by  holding  over  by  consent  of  landlord, 
where  it  exist fd  under  the  prior  lease,  259. 

where  leflseo  continues  to  hold  under  mn;iinderman,  it  is  a  quostinn 
of  fact  whether  such  j)roviHion  of  the  prior  tenancy  is  n<lo|>tc<l 
in    the   new,    261. 

right  of  removal  also  lost  by  tenant's  enterinfc  into  another  agree- 
ment terminating  his  possession   under  his  lease,   261. 

right  of  removal  also  lost  by  tenant's  mtoring  into  another  agree- 
ment terminating  his  possession  undrr  his  lenso.  ns  by  con- 
tracting to  purchaso  the  premises,  262. 

alteration  is  not,  233,  248. 


758  INDEX. 

[befcrences  akb  to  the  bottom  pages.  1 

KEMOVAL,  continued- 
right  of,  not  given  by  permission  to  erect,  225. 
right  of,  none  where  lease  requires  erection,  243,  535. 
of  trade  fixtures,  right  not  affected  by  a  covenant  to  repair,  241. 
right  of,  lost  by  delay,  214. 
right  of,  lost  by  disclaimer,  206,  207,  226. 
right  of,  when  lost  although  tenant  is  in  possession,  218. 
right  of,  not  lost  where  landlord  agrees  to  buy  or  try  to  sell,  223. 
right  of,  not  lost  by  judgment  of  dispossession  of  party  holding 

lease  or  security,  209. 
of  house  by  lessee  not  permitted  until  fully  paid  for,  229. 
on  day  notice  of  forfeiture  is  received,  is  in  sufficient  time,  211, 
right  of,  lost  by  sub-lessee  by  agreement  between  lessor  and  lessee, 

243. 
right  of,  not  lost  by  tenant,  by  agreement  between  landlord  and 

dub-tenant,  223. 
right  of,  by  third  party,  not  lost  by  agreement  between  landlord  and 

tenant,  225. 
right  of,  as  against  remainderman,  114. 
right  of,  as  against   devisee,   204. 

of  fixtures  by  grantor  of  land,  grantee  not  bound  to  accept,  399. 
by  chattel  mortgagee  of  fixtures,  must  be  made  within  a  reasonable 

time,  413. 
right  of,  by  unpaid  seller  reserving  title,  105. 
right  of,  when  makes  fixtures  chattels,  106,  124. 
lessee  having  right  of,  can  not  remain  in  possession  without  pay- 
ment of  rent,   213,  224. 
permission   for,    is   without   consideration    if   fixtures   have   become 

the  property  of  the  landowner    94,  226. 
when  grantee  can  insist  upon,  400. 

right  of,  not  lost  by  becoming  tenant  in  common  of  the  land,  261. 
right  of,  terminates  with  death  of  licensee,  214. 
of  disability,  agreement  made  after  is  without  consideration,  94 
RENT, 

can  not  be  recovered  for  fixtures  which  are  personalty,  664. 
action  lies  for  recovery  of,  when  paid  for  buildings  under  erroneous 

belief  that  a  right  of  removal  existed,  256. 
estoppel  by  receiving,  522. 

change  in  amount  of,  is  not  a  surrender  by  tenant,  256. 
REPAIRS.    See  Alteration,  Improvement. 

distinction  between  and  fixtures,  12,  236. 
distinguished  from  improvements,  525. 
meaning  of,  10. 
REPLACED  FIXTURES.     See  Suhstitution. 

agreement  to  replace  does  not  require  that  it  be  done  immediately, 

248. 


INDEX  759 

[BEFEBENCES  AKE  TO  THE  BOTTOM  PAGES.] 

REPLEVIN.     See  Action,  Measure  of  Damages,  Pleadin^  and  Practice!. 
REPUTED  OWNERSHIP.     See  Bankruptcy. 
RESERVATION.    See  Exception. 

constructive  severance  by,  651. 

of  crop,  does  not  make  it  personalty,  67. 

of  crop,  in  agreement,  is  merged  into  a  subsequent  deed,  341. 

of  crop,  by  officer  is  invalid,  342. 

of  trees,  can  not  be  made  by  parol,  375. 

of  trees,  in  contract  of  sale  of  land,  is  of  no  effect  if  none  in  sub- 
sequent deed,  377. 

of  title  to  machinery  does  not  defeat  a  mechanics'  lien,  106,  107. 

of  building  extends  to  the  land,  398. 

of  building  is  within  the  Statute  of  Frauds,  516. 
RESERVOIR, 

occupiers   of,  ratable,   568. 

not  rated  as  realty,  577. 

is    realty,    560. 

RESTRICTION.     See  Building  Bestriction. 

a  switchback  railway  is  a  violation  of,   12. 

statutory,  what  are  buildings  and  fixtures  within,  11 
RETORTS, 

removable  by  tenant,  140. 

occupiers  of,   ratable,   578,  579. 
REVERSIONER.     See  Tenant  for  Life,  Bemainderman. 

buildings  pass  to,  on  re-entry  for  condition  broken,  383. 

can  bring  assumpsit  against  life  tenant  for  severed  fixtures,  662. 
RIGHT   OF  WAY.     See  Easement. 
RIPRAPPING,  397. 
ROADBED.     See  Embankment,  Bailway. 

in   condemnation    proceedings,    380. 

ROADS   AND   WAYS, 

do  not  include  tram  plates  and  sleepers  not  fixed  to  freehold,  240. 
EOLLING-MILL.     See  Mill. 

conveyance  of,  jtasses  iron  rolls  and  plates  used  as  a  floor,  -4,  25. 
ROLLING-STOCK.     See   Taxation,  Can. 

whether  parcel  of  the  realty,  47  et  seq. 

held  to  be  part  of  the  realty,  and  to  pass  hy  a  mortgage,  etc.,  of 
the  roadway,  48. 

not  subject  to  sale  on  fi.  fa.,  48,  540,  546 

contra,  50,  541. 

may   be<'omo   realty   by   ostoppnl,   51. 

according  to  the  bettor  opinion   in  perHonnlty,  53. 

mortgage  of,  as  parrel  of  the  realty  hold  not  to  require  regiBtry  aa 
a  chattel  mortgage,  489. 


760  INDEX. 

[REFBRBNCGS  ABE  TO  THE  BOTTOM  PAGES.] 

ROLLING-STOCK,  continued— 

not   appendages,   567. 

when  covered  by  a  mortgage  in  another  state,  489. 
BOLLS, 

in  roUing-mill  are  part  of  the  realty,  and  not  subject  to  levari  facias, 
25,  46. 

such  rolls  pass  with  the  mill  on  a  sale  thereof,  24,  392,  455. 

not  realty,  if  never  turned  or  finished  off  and  put  into  the  mill,  54, 
455. 

calender  rolls,  right  to,  as  between  mortgagor  and  mortgagee,  438. 

in  rolling-mill  not  goods  and  chattels  within  the  bankrupt  acts,  511. 
ROMAN  CIVIL  LAW.     See  Civil  Law. 

as  to  columns,  figures,  and  statues,  40. 

as  to  annexations  upon  the  land  of  another,  77. 
SAFE.     See  7ron  Chest. 

not  ' '  fixtures  and  appurtenances,  "20. 

not  attached  to  freehold  is  personalty,  20,  53. 

not  attached  to  freehold  is  personalty,  and  subject  to  fi.  fa.,  20. 

in  a  vault,  removable  by  tenant,  143,  150. 

when  passes  with  land  to  the  grantee,  391,  437,  453,  456. 
SALE.     See  Seller  and  Buyer. 
SALT-KETTLES.     See  Kettles. 

right  to  as  between  chattel  mortgagee  and  a  subsequent  grantee  of 
the  land  to  which  annexed,  483. 
SALT-PANS, 

removable  by  tenant,  140,  160. 

when  pass  to  the  heir,  160^  303. 

included  in  a  demise  of  salt-works,  etc.,  258. 
SASH.     See  WorTc  Done  and  Fixed,   Windows,  Glass. 

of  a  show-case,  when  furniture,  81. 

removable  after   end   of  tenancy,   201. 
SAW-DUST,  435. 

SAW-FEAMES, 

in  a  marble-mill,  right  to  as  between  mortgagor  and  mortgagee,  438. 
SAW-MILL.     See  Mill. 

conveyance  of  by  that  description  passes  what,  23. 

on  government  land,  86,  91. 

when  not  realty,  424. 

presumption  as  to,  96,   103. 

removable  by  tenant,   138,  142. 

treated  as  personalty  by  owner,  115. 

machinery  in,  as  between  grantor  and  grantee,  383,  392,  403    434. 

when  a  chattel  not  pasf-ing  to  grantee  of  the  land,  433. 

declaration  in  replevin  for,  621. 

aflBdavit  in  replevin  for,  621. 


INDEX.  761 

[KEFEBENCES  ABE  TO  THE  BOTTOM  PAGES.] 

SAWS.     See   Mill-Saws. 

circular  saws,  when  pass  by  conveyance  of  the  realty,  391,  392,  436, 

438,  463. 
pass  to  heir,  303. 
held  subject  to  fi.  fa.,  543. 
saws  and  saw-benches,  when  pass  by  chattel  mortgage  as  against 

the  mortgagee  of  the  realty,  418. 
right  to,   as   between  chattel  mortgagee  and   mechanic  claiming   a 

lien,  425. 
SCAFFOLDING,  430, 

SCALES, 

when  removable  by  tenant,  141,  146. 

as  between  executor  and  heir  under  the  N.  Y.  statute,  313. 

goes  to  heir,  303. 

as  between  grantor  and  grantee  of  land,  391,  393,  396,  434,  436. 

is  a  fixture,  470. 
SCENERY.     See  Stages,   Theater. 

is  "fixtures  and  improvements,"  10. 

doesn't  pass  on  conveyance  of  land,  437. 

when  mechanics'  lien  allowed  for,  429. 
SCHOOLHOUSE.     See  Buildings,  Condemnation  Proceedings. 

damages  not  allowed  for  in  condemnation  proceedings,  89. 

not  covered  by  mortgage  of  land,  89. 

SCOTCH  LAW, 

as  to  fixtures,  difference  between  and  English  law,  307. 

"SCRAPE."      See    Turpentine. 
is  personalty,  333. 

SCREENS, 

are  trade-fixtures,  142. 

pass  on  conveyance  of  land,  389. 

removal  of,  is  a  breaking,  677. 

SEATS, 

Htone  garden-seats  removable  by  tenant  for  life,  280. 

SEA-WEED, 

not  the  subject  of  larceny,  668. 

SEIZURE.      See    Execution. 

SELLER  AND  BUYER.     See  Grantor  and  Grantee,  Vendor  and  rei\dee 

Lien. 
right  of  bnyor  of  (ixtnroH  as  ngainst  priintoc  of  tho  land,  lO.*). 
right  of  buyer  of  fixfiiros  ns  Jigaiiist  lionor,  424. 
right  of  buyer  of  fixturos  aH  ngainst  mortgagco  of  tho  land.   lU. 
geller  of  fixtures  annexed  can  enjoin   m.-rtgngoo  <.f  hind   fr<.m   nnle 

thereof,    611. 


762  INDEX. 

[refeiiences  are  to  the  bottom  pages.] 

SELLER  AND  BUYER,  continued- 
effect,   against   seller  of   chattel,   of   taking  mortgage  of  the   land 

and  chattel  as  security  for  the  price,  472. 
uncompleted   tanks   do   not   become   property   of   the    landowner   as 

against  seller,  508. 
agreement  of  tenant  to  go  out  of  possession  of  land  is  not  a  sale  of 

his   fixtures,   262. 
right  of  buyer  of  fixtures  after  tenancy  expires,  200,  208. 
windmill  is  not  personalty,  107. 

elevator  is  not  a  fixture  which  compels  buyer  to  accept,  452. 
trees,  376. 

void  sale  of  fixtures,  covered  by  mortgage  of  the  land   479. 
buyer  of  leasehold  takes  subject  to  conditions,  229. 
defrauded    seller.      See    Accession. 
rights  of  defrauded  seller  as  against  a  grantee  of  the  land,  401. 

Conditional  Sale, 

rights  of  unpaid  seller  against  landlord,  85,  209,  210,  229,  241,  479. 

rights  of  unpaid  seller  against  vendor  under  contract,  85. 

rights  of  unpaid  seller  against  assignee,  105. 

rights  of  unpaid  seller  against  assignee   of   lease,   487. 

rights  of  unpaid  seller  against  landowner,   84,  487. 

rights  of  unpaid  seller  against  grantee  and  mortgagee  of  the  land, 
408,  409,  415,  417,  419,  480,  484. 

rights  of  unpaid  seller  against  mortgagee  of  electric  cars,  as  to 
articles  annexed  thereto,  82. 

rights  of  unpaid  seller  against  mortgagee  of  the  leasehold,  419. 

rights  of  unpaid  seller  against  wife,  85. 

rights  of  unpaid  seller  against  one  with  notice,  479. 

rights  of  unpaid  seller  to  mechanics'  lien,  106,  107,  426. 

rights  of  unpaid  seller  as  to  machinery,   105. 

rights  of  unpaid  seller  as  to  doors,  mantels,  baseboards  and  wainscot- 
ing,  105. 

unpaid  seller  can  maintain  replevin,  622. 

SET-POTS, 

afiixed  by  owner  of  freehold  go  to  the  heir,  310. 
affixed  by  owner  of  freehold  not  subject  to  fi,  fa.,  537. 

SETTLED  LAND  ACT,  ENGLAND, 

what  is  an  "addition"  within,  10. 

SETTLEMENT, 

statute  of  13  and  14  Car.  II.,  c.  12,  sec.  1,  and  other  statutes  on 
the  subject,  582. 

not  gained  by  holding  a  post-wind-mill  not  annexed  to  the  free- 
hold, 15,  16,  583. 

contract  for  a  standing-place  for  a  carding-machine  confers  no 
settlement,  583. 


INDEX.  763 

[refebences  are  to  the  bottom  pages.] 
SETTLEMENT,  continued— 

in  order  to  confer,  the  thing  by  which  the  value  of  the  tenement  is 

enhanced  must  be  a  fixture,  585. 
gained   by  the  annexation  of   stove,   grates  and  cupboards  to   the 
house,  586. 

SEVERANCE.     See  Mechanics'  Lien,  Grantor  and  Grantee,  Eemedies. 

the  tenant's  right  of  severing  fixtures,  an  exception  to  the  general 
rule  of  law,  121. 

nature  of  this  right  in  case  of  tenant,  121.     See  Eemoval. 

what  constitutes  a  severance  sufiicient  to  convert  a  fixture  into  per- 
sonalty, 62. 

physical  severance  not  always  sufficient  to  convert  into  personalty, 
62. 

accidental,  or  temporary  severance  insufficient,  46.  54,  62,  456  et  teq. 

must  be  by  one  having  the  right  to  do  it,  63. 

and  with  the  intention  of  converting  into  a  chattel,  63. 

owner  may  elect  to  consider  thing  severed  as  personalty,  64,  70. 

mere  intention  to  sever,  insufficient,  55,  58,  65. 

giving  a  delivery  bond,  insufficient,  65. 

so,  as  to  exception  of  a  building  from  a  levy  on  land,  65. 

effect  of,  68  et  seq.,  360,  362,  616,  617,  619. 

effect  of  thing  severed  becomes  personalty,  when,  68,  480. 

effect  of  in  case  of  mortgages,  70,  71,  418. 

effect  of  in  case  of  mere  liens,  72,  73. 

effect  of  where  mortgage  is  considered  a  mere  lien,  72,  73. 

by  owner,  effect,  64,  70. 

by  mutual  consent  for  preservation,  effect,  382. 

by  mutual  consent  pending  dispute,  64. 

when  complete,  building,  64. 

when  complete,  fallen  trees,  63. 

what  sufficient,  manure,  460. 

what  sufficient,  stones,   457. 

of  trees  unlawfully,  pass  with  land,  457. 

of  landlord's  fixtures,   effect,   75,  618. 

by  grantor  before  delivering  f)0Hsession  of  premises,  618. 

effect  of  bill  of  lading  for  severed  fixtures,  on  right  of  owner,  71. 

by  life  tenant,  662. 

of  crops  by  sheriff,  remain  realty,  04,  342. 

trustee  under  deed  of  trust  can  not  sell  land  without  improvements, 
65. 

pending  partition  suit,   effort,   380. 

court   no   power   to   sever,   64. 

from   homcHtead,   fixture   rcmninB  exempt,   71,   540. 

from   homestead,  of  crops,   365. 
Constructive  Severante,  65. 

by  grant  nr  roHorvatirm,  6.'),  66.  67,  375,  6.')1. 


764  INDEX. 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

SEVERANCE,  continued— 

Constructive  Severance — Continued — 
by  agreement,  67,  68. 
by  treatment  of  the  parties,  69. 
by  distinct  interests,  69. 

by  act  of  God,  63,  75,  265,  457,  459,  474,  644. 
by  act  of  God,  decay,  63,  310,  458. 
by  act  of  God,  fire,  63,  69,  75,  424,  541,  622. 
not  by  levy  of  execution,  67,  68,  69,  542. 
nor  oral  assent  of  landowner,  110. 
not  by  sale,   623. 
effect,  67,  75,  540. 

by  chattel  mortgage,  ceases  when  mortgage  expires,  68. 
of  crops,  66,  340,  342. 
SHAPT-HOUSE, 

is  trade  fixture,  140, 
SHAFTING, 

removable  by  tenant,  141. 

right  to,  as  between  tenants  in  common,  380. 

right  to,  as  between  vendor  and  vendee  of  the  realty,  381,  389,  392, 

403,  418,  433. 
trover  for,  648. 
goes  to  remainderman,  273. 
mechanics'  lien  allowed  for,  428. 
not  subject  to  levy,  538. 
covered  by  insurance,  379. 
SHAPERS, 

in  a  sash,  door  and  blind  factory,  right  to  as  between  grantor  and 
grantee  of  the  realty,  392. 
SHEARING-MACHINES, 

not  fixed  are  chattels,  17. 
SHEARS, 

as  increasing  the  ratable  value  of  realty,  574. 
SHEDS.     See  Engine  House,  Building. 

removable  as  trade  fixtures,  143,  150,  161. 

erection  of,  not  a  repair,  237. 

erected  by  mortgagee  in  possession  for  use  as  a  blacksmith  shop, 

removable,  422. 
declaration  in  replevin  for,  621. 
go   to   executor,    273. 
covered  by  insurance,  379. 
"SHED,  STABLE,  STORE-ROOM  AND  BARN," 

building  described  as,  removable  by  tenant,  150 
SHELF,  SHELVING, 

removable  as  a  trade  fixture,  141,  143,  197,  242. 
presumed  to  be  fixed,  234,  652. 


INDEX.  765 

[BEFEBENCES  ARE  TO  THE  BOTTOM  PAGES.] 

SHELF,  SHELVING,  continued— 

in  a  store  passes  with  the  land  by  a  conveyance,  394. 

mechanics'  lien  allowed  for,  429. 

not  furniture,  476. 

sale  of,  within  Statute  of  Frauds,  515. 
SHELLS, 

for  printing  machine,  mechanics'  lien  allowed  for,  427. 
SHINGLE-MACHINES.     See  Machinery. 

pass  with  the  realty  on  an  execution  sale,  402. 
SHIP, 

right  of  mortgagee  of,  to  severed  articles,  74. 
SHOP.     See  Building. 

erected  by  tenant  out  of  materials  of  old  shop,  153. 
SHOP-SHUTTERS.     See  Shutters. 

destroying,  when  an  offense  within  24  &  25  Vict.,  c.  97,  676. 
SHOW-CASE.     See  Case. 

removable  as  trade  fixture.  142. 
SHROUD, 

no  property  in,  325. 

SHRUBS.     See  Trees. 

not  removable  by  tenant.  164,  197. 
SHUTTER-BOX, 

when   not   considered  part   of   a   dwelling   so   as   to   constitute   th^ 
breaking  of  it  burglary,  677. 

SHUTTERS.     See  Shop-Shutters. 

removable  by  tenant,  197. 
SIDEBOARD, 

passes  on  conveyance,  436. 

SIDEWALK.     See  Pavement. 

in  street,  belongs  to  landowner,  88,  636. 
SIGNIFICATION.     See  Definition,  Meaning. 

SIGNS, 

when  passes  by  a  convoyanco  of  the  realty,  394,  4.36,  437. 

trespass  for  removing  a  brass  plato  used  as  a  sign,  636. 

is  a  fixture,  526. 

is  not  part  of  a  building,  676. 

is  trade  fixture,   143. 

passes  to  assignee  in  bankruptcy,  508. 
SINKS, 

when  removable  by  tenant,   1J3,   146,   16.'5. 

pass  to  heir  as  against  the  executor,  309. 
SIZE.     See  Weight. 

as  a  test,  12.'),  154.  4.36,  448. 

aa  evidence   of   intent,    13. 

as  evidence  of  movability,   107. 


766  INDEX. 

[BEFEUENCES  ABE  TO  TBB  BOTTOM  PAQBS.] 

SKY-LIGHT, 

a  fixture,  8. 
SLANDER, 

charging  larceny  of  fixtures  is  not  per  te,  670. 
SMOKESTACK.     See  Chimney. 

mechanics'  lien  allowed  for,  427. 

covered  by  insurance,   379. 

not  subject  to  levy,  538. 

right  of  unpaid  seller  to,  105. 
SORGHUM-MILL.    See  Mill. 

passes  on  conveyance  of  realty,  391. 
SPEAKING-TUBE, 

covered  by  insurance,  379. 
SPECIAL  ASSESSMENT.     See  Taxation. 
SPEEDERS, 

whether  pass  to  the  grantee  with  the  realty,  441. 
SPINNING-FRAMES, 

whether  pass  to  the  grantee  with  the  realty,  441. 
SPINNING-MACHINES.     See  Machinery. 

do  not  go  to  heir,  303. 
SPOOLERS, 

whether  pass  to  the  grantee  with  the  realty,  441. 
SPREADERS, 

whether  they  pass  to  the  grantee  with  the  realty,  441. 
STABLE.     See  Back,  Buildings. 

not  waste  to  break  up  stable  floor,  unless  fixed,  604 

alieno  solo,  91. 

STACK.     See  Ejectment,  SmoTcestacTc. 

STAGE  AND  SCENERY.     See  Scenery,  Theater. 

pass  on  conveyance  of  land,  395. 

in  a  theater,  whether  subject  to  a  mechanics'  lien,  425. 
STAIRS, 

when  removable  by  tenant,  143,  146,  187. 

removal  of,  is  waste,  127. 
STALLS, 

box  stalls  in  a  saloon  removable  as  trade  fixtures,   142. 

box  stalls  in  a  stable,  removal  of  prevented  by  covenant  to  repair, 
etc.,  236. 

STAMP  ACTS, 

an  agreement  for  sale  of  growing  fruit  is  an  agreement  for  the 

sale  of  an  interest  in  land,  requiring  a  stamp,  etc.,  375. 
fixtures  are  not  goods,  wares  and  merchandise,  within,  517. 
lease  stamp,  when  required,  517. 


INDEX.  767 

[HEFEBENCES  ABE  TO  THE  BOTTOM  PAGES.] 

STANCHION-TIMBEES, 

of  a  barn,  pass  to  grantee  though  temporarily  severed,  456. 
STARE  DECISIS, 

doctrine  of  as  applied  to  fixtures,  191. 
STATE  LAND.     See  Public  Land. 
STATION.     See  Building. 
STATUARY, 

an  example  of  constructive  annexation,  30. 

well  considered  in  Snedeker  v.  Warring,  39. 

passes  by  conveyance  of  realty,  38,  435. 

removable  by  tenant  for  life,  279. 

not  subject  to  levy,  538. 

STATUTES.     See   their  different   titles. 

how  affected  by  agreements,  221,  225. 

STATUTE  OF  13  AND  14,  CAR.  II.,  Ch.  12,  Sec.  1,  etc.     See  Settle- 
ments. 

STATUTE  OF  13  ELIZ.,   Ch.   5.     See  Emblements. 

mortgagor's    retaining    possession    of    fxtures    after    execution    of 
mortgage  upon  the  land  not  evidence  of  fraud,  512. 

STATUTE  OF  43  ELIZ.,  Ch.  2.    See  Poor  Rates. 

STATUTE  OF  FRAUDS.     See  Emblements,  Evidence. 

agreeniccte  as  to  removal  of  things  to  be  annexed  to  the  realty  may 

be  by  parol,  108,  109. 
agreements  as  to  removal  of  fixtures  may  be  by  parol,  219,  513. 
sales  of  growing  crops,  whether  within  the  14th  section,  370  et  seq. 
sales  of  growing  crops  are  within  the  17th  section,  371. 
sales  of  trees,  grass,  etc.,  whether  within  the  4th  section,  372. 
sales  of  fixtures,  whether  within  the  4th  section,  513. 
parol  j)romise  to  pay  for  improvements  upon  IjiikI,  valid.  219,  r>]4. 
otherwise  as  to  a  contract   for  the  sale  aud  delivery  of  possession 

of  land  and  the  improvements,  515. 
whether  fixtures  may  by  parol  be  excepted  from  the  operation  of  a 

deotl  conveying  land  on  which  tlu-y  are  sitnnte<l,  M-'i. 
parol  testimony  inadniissililc   to  inchnio  in  a  salt'   of  lan<l  anything 

not  appertaining  thereto  or  parcel  thereof,  r>\i'K 
sale  of  tenant's  fixtures  while  annexed  not  a  sale  of  goods,  wares 

and  nierchandiao  within   the   17fh  sortion,  517. 
if  sale  of  fixtures  void,  mortgagee  of  land  entitled  to,  479. 
whether  a  building  is  prima  facie  realty  within,  513. 
sale  of  building  materials  of  a  standing  hoiifi(>  in  within,  .'■>15. 
contract  to  haul  away  materials  of  a  standing  barn  not  within,  515. 
sale  of  ice  not  within,  514. 
oral  partition  of  line  fence  valid,  514,  515. 
oral  mortgage  of  crop  valid,  368,  871. 


768  INDEX. 

[REFEBENCES  ARE  TO  THE  BOTTOM  PAGES.] 

STATUTE  OF  FRAUDS,  continue*!— 

if  transfer  of  land  void,  crops  do  not  pass,  340,  372. 
oral  agreement  on  conveyance  of  land  that  a  third  person  may  have 
a  marine  railway  is  valid,  516. 

STATUTE  OF  LIMITATIONS, 

when  a  bar  to  trespass  de  bonis  for  fixtures,  634. 

when  a  bar  to  trespass  de  bonis  for  water-wheel  reserved  in  a  deed, 
647. 

when  a  bar  to  trespass  de  bonis  for  timber,  634. 

when  rails  are  personal  property  within,  619. 

when  buildings  are  personal  property  within,  623,  643. 
STATUTES  OF  MAELBEIDGE  AND  GLOUCESTER,  128,  130. 
STATUTE  OF  MERTON,  356. 

STAULKS, 

pass  to  the  heir  with  the  realty,  300. 

STEAM-ENGINE.  See  Ejectment,  Larceny,  Motive  Power,  Boiler,  Gas 
Engine,  Portable  Engine. 

character  of  as  personalty  preserved  by  agreement,  485. 

transferred  by  bill  of  lading  as  against  mortgagee  of  realty,  71. 

placed  on  land  of  another  under  agreement  for  its  removal,  is  per- 
sonalty, 104,  115. 

afiSxed  by  owner  of  freehold  not  subject  to  /i.  fa.,  537,  538,  543. 

afl&xed  by  tenant  subject  to  f,.  fa.,  245,  544. 

when  removable  by  tenant,  140,  146,  160,  245. 

included  in  the  term  improvement,  245. 

right  to  as  between  vendor  and  vendee,  mortgagor  and  mortgagee, 
etc.,  of  the  realty,  381,  387,  392,  396,  403,  418,  419,  420,  433, 
434,  446,  449,  457,  466. 

held  to  pass  on  sale  to  enforce  mechanics'  lien,  425. 

right  to,  as  between  chattel  mortgagee  and  mechanic  claiming  a 
lien,  425. 

right  to,  as  between  landlord  and  assignee  in  bankruptcy,  510. 

as  enhancing  the  ratable  value  of  realty,  573,  574,  577,  578,  580. 

connected  with  non-ratable  principal,  whether  ratable,  581. 

declaration  in  replevin  for,  621. 

affidavit   in   replevin   for,   621. 

whether  subject  of  deodand,  680. 

not  an  alteration,   247. 

when  a  fixture  by  weight,  38. 

abandoned  by  tenant,  belongs  to  the  landlord,  208. 

between  heir  and  executor,  273,  303. 

when  mechanics'  lien  allowed  for,  427. 

covered  by  insurance,  379. 

how   taxable,   564. 

right  to,  in  "bankruptcy,  107. 


INDEX.  769 

[BEPEBENCES  ABB  TO  THE  BOTTOM  PAGES.] 

STEAM-ENGINE,  continued — 
replevin  for,   622. 
right  of  seller  on  condition,  105. 
right  of  lessor  as  against  a  grantor  of  the  land  under  contract,  622. 

STEAM-HAMMER, 

right  to,  as  between  mortgagor  and  mortgagee  of  the  realty,  468. 

STEAM-HEATER.     See  Heater. 

is  trade  fixture,  139. 
STEAM  HEATING  PLANT.     See  Heating  Plant. 

not  removable  by  tenant,  187, 

STEAM-TUB.    See  Tub. 

in  a  distillery,  removable  by  a  tenant,  140. 
when  liable  to  distress,  551. 

STEEL-YARD, 

whether  ratable  to  the  poor,  575. 

STEPS.    See  Stairway. 

when  removable  by  tenant,  146,  164,  197. 

STILLS, 

when  goods  and  chattels  in  order  and  disposition  of  bankrupt,  16, 

507. 

when  subject  to  fi.  fa.,  538. 

when  subject  to  distress,  551. 

removable  by  tenant,  140. 

not  fixed  to  freehold,  go  to  executor,  296. 

set  in  brick-work  pass  to  grantee  of  the  land,  389. 

not  fixed  do  not  pass  to  grantee  of  the  land,  433. 

removable  by  tenant  pur  autre  vie,  266. 
STOCKHOLDER.     See  Corporation. 

annexations  made  by,  to  corporate  building  are  not  removable,  87. 
STONE.    See  Accession,  Gravestones,  Pavement,  Tombs,  Altar-Stone. 

quarried  for  door  step  but  not  fitted  and  placed,  a  chattel,  54,  435. 

quarried  for  a  tomb  does  not  pass  with  the  land,  55,  435. 

falling  from  cliffs,  when  becomes  part  of  realty,  82. 

falling  from  the  heavens,  belongs  to  finder,  83. 

when  piling  up,  is  a  peverance,  54,  55,  64,  70. 

when  passes  with  land,  397,  435,  457. 

STONE  WALL.     See   Wall. 

influence  of  intention  in  determining  whether  a  fixture,  44. 

STOOLS.     See   Chairs,   Furniture. 

in  a  store,  removable  by  tenant,  141. 
STORE-FIXTURES.     Sec   Meaning. 

moaning  of,   8,   12,   379. 
STORM-HOUSE.     See  Building. 

is  a  trade  fixture,  143. 

49 
// 


770  INDEX. 

[BEFEBEXCES  ABE  TO  THE  BOTTOil  PAGES.] 

STOVES.     See  Furniture,  Eangcs,  Heaters. 

when  furniture,  449,  476. 

removable  by  tenant,  197. 

removable  by  incumljent,  286. 

when  pass  to  the  heir  with  the  realty,  304. 

and  pipe,  when  pass  with  the  realty  to  grantee,  43<S,  449. 

in  a  leasehold  house  held  to  pass  by  a  bequest  of  household  furni- 
ture, 475. 

when  not  subject  to  distress,  552. 

when  annexation  of,  confers  a  settlement,  586. 

mechanics'  lien   not   allowed   for,   429. 
STEAW, 

a  part  of  the  crop  and  belongs  to  the  owners  thereof,  180. 
STRAWBERRY-BEDS.     See  Plants. 

waste  for  tenant  to  plow  up,  163. 
STREET, 

pipes  and  mains  in  are  personalty,  104. 

pipes  and  mains  in,  how  and  where  to  be  taxed,  559,  560. 

railway  on,  not  personalty,  546. 

railway  on,  belongs  to  city,  88. 

railway  on,  mechanics'  lien  not  allowed  for,  431. 

railway  on,  how  assessed  and  taxed,  562,  563. 

poles  and  wires  on,  are  personalty,  113, 

poles  and  wires  on,  are  covered  by  a  mortgage,  463. 

poles  and  wires  on,  mechanics'  lien  allowed  for,  431. 

bridge  on,  not  exempt  from   taxation,   559. 

wharf  on,  how  taxable,  558. 

pavement  on,  belongs  to  abutting  landowner,  88. 

fixtures  upon,  how  tax  apportioned,  563. 
STRUCTURE.    See  Erection. 

what  is,  379. 

STUBBLE-CANE, 

covered  by  a  mortgage  on  the  land,  349. 
STUFF-CHESTS, 

in  paper-mill,  not  subject  to  extent,  538. 
SUBROGATION.     See  Equity. 

SUBSTITUTION.     See  Replaced  Fixtures. 

of  fixtures  by  tenant,  no  right  to  remove,  146,  217,  241,  243,  409. 

right  to  make,  gives  no  right  to  dismantle,  228. 

of  ferry-boat,  lien  on  old  one  does  not  attach  to  new,  419. 

SUGAR-CANE.    See  Crops. 

is  subject  to  the  law  of  emblements,  337. 
SUGAR-MILL.     See  Mill. 

passes  with  land,  391. 

sale  of,  IS  within  the  Statute  of  Frauds,  515. 


INDEX.  771 

[BEFEBENCES  ABB  TO  THE  BOTTOM  PAGES.] 

SUIT.     See  Action. 
SUMMER-HOUSE.     See  Buildings. 
not  removable  by  tenant,  193. 

SUN-DIAL, 

constructively   annexed   to   the   realty  and  passing   by  a  mortgage 
thereof,  38. 

larceny  of,  673. 
SUERENDER.     See  Abandonvient,  "Re-entry. 

assignment  of  lease  is  not,  527. 

a  change  in  the  amount  of  rent  is  not,  256. 

right  to  remove  fixture  is  lost  by,  207. 

no  consideration  for  promise  made  after,  in  regard  to  removal  of 
fixtures,  226. 

effect  on  right  to  crops,  359. 

SWINGS, 

mechanics'  lien  not  allowed  for,  430. 

SWITCHBACK  RAILWAY, 

is  a  chattel,  12, 
SWITCHBOARD.     See  Electric  Fixtures, 

is  a  trade  fixture,  143. 

does  not  pass  with  land,  437. 

taxable  as  personalty,  564. 

TABLES, 

seized  on  f,.  fa.  against  tenant,  133. 

are  removable  fixtures,  139. 

as  between  heir  and  executor,  298. 

when  pass  with  land,  395,  437. 

mechanics'  lien  not  allowed  for,  430. 

when  fixtures  by  weight,  38. 
TABLES  DORMANT, 

as  between  landlord  and  tenant,   196. 

not  subject  to  distress,   298,  549. 

pass  to  heir  and  not  to  executor,  298,  300. 

TANKS.     See  CasTcs,   Tubs,  Vats. 
when  fixtures  by  weight,  38. 
are  trade  fixtures,  140. 
pass  with  the  land,  389,  395. 
mechanics'  lien  allowed  for,  427,  430. 
covered  by  insurance,   379. 
when  not  taxablo  as  roalty,  564. 
not  ratable  as  realty,  577. 
incomplete,  property  in  does  not  pass  to  buyer  as  landowner,  508. 

TAPERTRTES, 

when  removable  by  tenant  for  life,  276,  277,  279. 


t  iZ 


2  INDEX. 


[REFERENCES  ABB  TO  THE  BOTTOM  PAGES.] 

TAPESTRIES,  continued— 

as  between  executor  and  heir,  301,  309. 

pass  to  devisee,  474. 
TAXATION;  TAXES.     See  Foor  Bates,  Lien. 

subject  matter  of,  regulated  by  statute,  557. 

railroad  rolling  stock  subject  to  sale  as  personalty  to  enforce  collec- 
tion of  taxes,  50,  566. 

buildings  upon  the  land  of  another,  how  taxable,  19,  557,  561. 

machinery  in  mills,  how  taxable,  565. 

gas-pipes,   how   taxable,   559. 

"fixed  and  stationary  personal  property,"  567. 

property  must  be  treated  as  realty  throughout  the  entire  proceed- 
ings as  to  taxation,  or  as  personalty,  567. 

whether  rule  between  grantor  and  grantee  and  heir  and  executor 
applies,  564. 

dry-dock  assessed  as  land,  12. 

fixtures  on  streets,  how  tax  on  apportioned,  563. 

fixtures  on  streets,  special  assessment  of,  563. 

tax  on  a  structure  includes  the  land,  565. 

exemption  of  a  building  from,  extends  to  the  land,  398. 

trees  are  not  exempt  as  a  crop,  338. 

failure  to  return  fixtures  as  personal  property  as  evidence  of  intent, 
452. 

TEAZLES, 

whether  the  subject  of  emblements,  338. 

TELEGRAPH.     See   Wire,  Posts. 

on  public  land,  how  taxed,  562. 

occupier  of  the  posts  and  wires  ratable,  569,  578. 

apparatus  as  enhancing  the  ratable  value  of  realty,  578. 
TELEPHONE.     See  Poles,  Wires. 

on  public  land,  how  taxed,  562. 

in  street,  remains  personal  property,  113. 

subject    to   levy,    547. 

who  occupier  of,  570. 
TEMPORARY  PURPOSE, 

meaning  of  term,  446,  555. 
TENANT.     See  Landlord  and  Tenant,  Lease,  Lien. 

has  a  special  property  in  fixtures,  etc.,  leased  with  a  house,  75. 

has  a  special  property  in  materials,  etc.,  severed  by  act  of  God,  75, 
644. 

has  a  special  property  only  for  purpose  of  rebuilding,  75,  644. 

may  not  remove  fixtures,  parcel  of  the  demised  premises,  to  another 
building,  after  their  severance  by  fire,  75. 

TENANT  AT  SUFFERANCE, 

not  entitled  to  emblements,  353. 


INDEX.  773 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

TENANT  AT  WILL, 

when  loses  right  to  remove  fixtures,  213. 

TENANT  BY  CUETESY,     See  Tenant  for  Life. 

TENANT  FOR  LIFE,  OR  IN  TAIL.     See  Trade  Fixtures,  Ornamental 

and  Domestic  Fixtures,  Settled  Land  Act. 
cases  between  executor  and  heir,  when  of  authority  in  this  relation, 

263. 
reason  of  distinction  between  the  two  relations,  263. 
agricultural  fixtures  erected  by,  not  removable,  171. 
thinnings  of  fir  trees  belong  to  tenant  for  life,  264. 
right  of  tenant  for  life,  during  his  lifetime,  to  remove  fixtures  equal 

to  that  of  his  executor,  265. 
tenant  pur  autre  vie,  rights  of,  as  to  removal  after  death  of  cestui 

que  vie,  same  as  those  of  executor  of  tenant  for  life,  265. 
powers  of  tenants  for  life  without  impeachment  of  waste,  266,  267. 
may  not  commit  malicious  waste,  266,  606. 
tenants  in  dower,  and  by  the  curtesy,  rights  of  as  to  fixtures,  same 

as  those  of  tenant  for  life,  267. 
tenant  for  life  cannot  charge  the  expense  of  improvements  upon  the 

inheritance,  523. 
tenant  in  tail,  power  of  as  to  removing  fixtures  in  his  lifetime,  267. 
tenant  in  tail  will  not  be  enjoined  from  committing  waste,  unless 

malicious,  268. 
rights  of,  and  their  executors  compared,  268. 
rights  of  issue  in  tail  as  to  fixtures  as  against  the  executor,  same 

as  between  executor  and  heir  of  tenant  in  fee,  298. 
cannot  devise  irremovable  fixtures,  474. 

but  may  devise  those  which  would  pass  to  the  personal  representa- 
tive, e.  g.,  tenant's  or  trade  fixtures,  474. 
can  not  take  timber  to  rebuild,  524. 
right  to  timber  severed  by  act  of  God,  75. 
can  not  bind  devisee  in  remainder,  524. 
structures  erected  with  permission  of,  are  removable,  114. 
structures  erected  with  permission  of,  remainderman  not  entitled  to 

compensation   for  in   condemnation   proceedings,    89. 
measure  of  damages  for  destruction  of  building,  640. 
liable  in  assumpsit  to  remainderman  or  reversioner,  for  severance  of 

fixtures,   662. 
who   can   enjoin   against   waste,    606. 
when  a  minor  is  entitled  to  relief  against  remainderman  for  funds 

expended  by  guardian  in  building,  524. 

TENANT-IN-COMMON.     Sec   Trespass,  Grantor  and  Grantee,  Mortgagor 
and  Mortgagee,  Title,  Joint  Tenants,  Lien. 
cannot  make  improvements  on  the  common  property  without  consent 
of  co-tenants,  etc.,  92,  414. 


774  INDEX. 

[RGFEBENCES  ABB  TO  THE  BOTTOM  FAQES.] 

TENANT-IN-COMMON,  continued- 
consent  in  such  case  held  not  to  authorize  the  inference  of  an  agree- 
ment as  to  removal,  113. 

consent  in  such  case  held  to  authorize  the  inference  of  an  agreement 
as  to  removal,  115. 

questions  on  partition  betvreen,  to  be  decided  as  if  between  grantor 
and  grantee,  17,  380,  387. 

may  remove  trade  fixtures,  413. 

of  remainder,  can  not  recover  for  improvements  made  as  tenant,  524. 

when  building  by  one  is  covered  by  a  mortgage  of  the  land,  410,  414. 

lien  of,  for  improvements,  passes  to  his  mortgagee,  410. 

right  to  machinery  on  lot  of  one,  400. 

brick  building  owned  by  fewer  than  all,  does  not  make  it  per- 
sonalty, 92. 

right  to  fixtures  annexed  as  partners,  109. 

lessee  becoming,  does  not  lose  his  right  to  fixtures,  261. 

crops  go  with  land  on  partition,  340. 

of  crops,  are  owners  of  personalty,  372. 

estoppel  of,  410,  519. 

entry  by  one,  does  not  affect  lessee's  right  of  removal,  211. 

TENANT  IN  DOWER.    See  Tenant  for  Life. 

TENANT  PUR  AUTRE  VIE.     See  Tenant  for  Life. 

right  to  improvements  after  death  of  cestui  que  vie,  265,  284. 
improvements  by,  go  to  heir  of  cestui  que  vie,  524. 

TENANT'S  FIXTURES.     See  Fixtures,  Trade  Fixtures,  Meaning. 
what  are,  1,  5. 

are  realty  while  unsevered,  45 
reason  of  this  rule,  45. 

TENEMENT.    See  Settlement. 

TESTIMONY.    See  Evidence. 

TESTS, 

what  are,  13,  27. 

adaptation,  27,  440. 

annexation,  27,  37. 

common  sense,  33. 

injury  occasioned  by  removal,  438. 

intention,  30. 

long  use  in  connection  with  land,  441. 

possibility   that   realty   and   machinery   would   bring   more   if   sold 

together,  595. 
size,  125,  154,  436. 
weight,  436. 
value,  relative  to  land,  136,  137,  221,  257,  463. 


INDEX.  775 

[BEFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

THEATER.     See  Scenery,  Stage,  Opera  Chairs. 

fixtures  in,  pass  with  land,  395,  464. 

mechanics'  lien  allowed  for,  429. 
THINGS  FIXED, 

distinguished  from  fixtures,  4. 

THRESHING-MACHINES, 

when  not  fixtures,  18. 

removable  by  agricultural  tenant,  177. 

when  pass  to  grantee  with  the  realty,  391,  443. 
TIE-CHAINS, 

pass  to  grantee  though  temporarily  severed,  456. 
TIE-UP-PLANKS, 

pass  to  grantee  though  temporarily  severed,  456. 
TILES, 

when  removable  by  tenant,  143,  146. 
TIMBER,     See   Trees,  Building  Materials. 

hauled  upon  the  farm  for  a  granary,  not  realty,  53. 

by  annexation  to  freehold  becomes  realty,  84. 

cut  on  government  land  does  not  pass  to  the  grantee  with  the  land, 
434. 

injunction  to  restrain  removal  of,  605. 

does  not  pass  with  the   land,   435. 

trover  lies  for,  if  cut  pending  suit  in  ejectment,  646. 

trover  lies  for,  if  cut  between  execution  sale  and  delivery  of  deed, 
645. 

trover  lies  for,  if  cut  in  another  state,  642. 
TITLE.     See  Merger,  Seller  and  Buyer. 

effect  of  ownership  in  land  and  fixtures  merging  in  one  person,  109, 
400,  402,  409,  413. 

what  is   unity   of,   385,   400. 

effect  of  land  and  fixtures  being  owned  by  different,  92,  109,  112, 
400,   410,   538,   620. 

to  land,  covenant  not  broken  by  grantor  purchasing  the  crops  of  his 
former  tenant,  482. 

TOMBS.     See  Grave  Stones,  Stones. 

are  in  the  nature  of  heir-looms,  320. 

who  to  bring  action  for  injury  thereto,  324. 

larceny  of  iron  rails  and  brass  fixed  to,  671,  673. 

TOOLS.    See  Patterns. 

are  not  necessarily  personalty,  469. 
do  not  pass   with   land,   434, 

TRACK.     See  liailway. 

not  removable  by  tenant,  146, 
tax  on,  inrhulos  the  land,  565. 


776  INDEX. 

[REFERENCES  ARE)  TO  THE  BOTTOM  FAQES.] 

TRADE  FIXTUEES.    See  Heir  and  Executor,  Tenant 's  Fixtures. 
are  realty  while  annexed,  45,  122. 
reason  why  so  considered,  45, 
early  cases  relating  to,  129  et  seq. 
Poole's  Case,  133  et  seq. 
grounds  of  the  privilege  in  respect  of,  134. 
intention,  a  material  subject  of  inquiry,  135. 
privilege  of  removal  most  liberally  construed  in  respect  of,  138. 
what  articles  are  removable  by  tenant  as,  139. 
may  be  sold  or  mortgaged  by  tenant,  139. 
may  be  sold  on  fi.  fa.  against  tenant,  144,  153. 
when  the  privilege  of  removing  is  allowed,  144  et  seq, 
distinction  between  and  buildings,   147. 
distinction  between  and  buildings,  contra,  148  et  seq. 
no  objection  that  two  trades  are  carried  on  in  same  building,  162, 
what  constitutes  a  trade,  157,  166-176. 

privilege  of  trade  not  confined  to  trade  according  to  the  construc- 
tion of  statutes  of  bankruptcy,  158. 
keeping  an  inn  a  trade  within  rule  as  to  trade  fixtures,  157. 
so,  as  to  working  a  coal  mine,  158. 
80,   as  to   manufacturing   cider,   158. 
80,  as  to  manufacturing  salt,  158. 
so,  as  to  brickmaking,  158. 
so,  as  to  lime-burning,   158. 
so,  as  to  milling,  158. 
quaere  as  to  certain  specified  branches  of  husbandry  and  agricultural 

operations,  158,  159.     See  Agricultural  Fixtures. 
mixed  cases;  trade  connected  with  the  enjoyment  of  the  profits  of 

land,  158  et  seq. 

Lawton  v.  Lawton,  159. 

Dudley  v.  Warde,  159. 

other  cases,  160. 

tenants  of  nursery  and  garden  grounds,  162. 
mixed  trade  and  domestic  fixtures,  164. 
as  between  the  personal  representatives  of  tenants  for  life  or  in  tail 

and  remainderman,  etc.,  269  et  seq. 
mixed  cases,  Lawton  v.   Lawton,   269. 
mixed  cases,  Dudley  v.  Warde,  272. 
trade  buildings  removable  as  between  tenant  for  life  or  in  tail  and 

remainderman,  etc.,  273. 
exception  does  not  extend  to  farm  buildings,  nor  fences,  274. 
grounds  of  exception  as  between  tenant  for  life  and  remainderman, 

274. 
tests  as  to  whether  removable  as  between,   274-276, 
erected  by  incumbent   of  benefice,   not  removable,   289. 
are  ratable  to  the  poor,  580, 


INDEX.  777 

[BEFEBBNCBS  ABB  TO  THE  BOTTOM  PAGES.] 

TBADE  FIXTUKES,  continued— 

of  sub-lessee  are  lost  by  an  agreement  between  lessor  and  lessee,  243. 

right  to  remove  not  affected  by  a  covenant  to  repair,  241. 

whether  agreement  as  to  removal  of,  confers  additional  rights,  216, 
224. 

•whether  may  be  removed  by  a  tenant-in-common  of  the  land,  413. 

when  mechanics'  lien  allowed  for,  432. 

effect  on  right  of  removal,  if  ownership  of,  and  ownership  of  the 
land  unite  in  the  same  person,  400,  402,  409. 

to  be  aflfaed,  chattel  mortgage  of,  is  valid,  144. 
TEADE-MARK, 

not  a  fixture,  13. 

TEAMWAY.     See  Railway,   Electric   Railway. 
occupier  of  ratable,  569,  582. 
right  to  remove,   114. 
passes  with  land,  390. 
owned  by  tenant,  subject  to  levy,  544. 

TRANSOMS, 

pass  with  land,  389. 

TREES.     See  Statute  of  Frauds,  Execution,   Larceny,  Product,  Action, 

Timber,  Shrubs,  Hedges,  Nurseries. 
growing  trees,  etc.,  a  part  of  the  realty,  72,  333,  668. 
growing  trees  not  subject  to  fi.  fa.,  541. 
trees,  grass,  etc.,  when  constructively  severed  become  personalty  and 

pass  to  executor,  375. 
trees  cut  down  by  copy-holder  belong  to  the  land,  70. 
planted  alieno  solo,  78,  99. 

on  boundary  line  between  adjoining  proprietors,  99. 
planted  on  another's  land  may  remain  personalty  by  agreement,  119. 
trees,  shrubs,  plants,  etc.,  when  removable  by  tenant,  162. 
growing  in  churchyard,  belong  to  incumbent,  241. 
interest  of  tenant  in,  75,  163,  164,  333. 
if  severed,  pass  to  personal  representative,  334. 
not  the  subject  of  emblements,   337. 
severance  and  removal  of,  when  restrained  by  injunction,  603,  605, 

608,  612. 
whether  pubject  of  deodand,  679. 
agreement  by  tenant  to  replace,  248. 
severance  of,  by  tenant,  go  to  landlord,  75. 
severance  of,  unlawfully,  pass  with  land,  457. 
severance  of,  unlawfully,  when  pass  to  grantee  of  land,  459. 
severance  of,  by  wind,  do  not  go  to  devisee,  474. 
severance  of,  by  wind,  proceeds  do  not  go  to  life  tenant,  265. 
severance  of,  from  mnrtgnged  land,  71,  72. 
can  not  be  used  by  life  tenant  to  rebuild,  524. 


778  INDEX. 

[refekknces  are  to  the  bottom  pages.] 

TREES,  continued— 

algaroba,  removable  by  tenant,  164.  1 

can  not  be  reserved  by  parol,  375. 

reservation  of,  in  contract  of  sale  of  land,  of  no  effect  if  no  reserva- 
tion is  made  in  the  deed,  377. 
mechanics'  lien  not  allowed  for,  13. 
not  exempt  from  taxation  as  a  crop,  338. 
measure  of  damages  for  removal  of,  641. 
warranty  of  title  to,  is  one  of  personalty,  376. 

TRESPASS.     See  Action,  Pleading  and  Practice. 
TRIP-HAMMER, 

right  to,  as  between  vendor  and  vendee  of  the  realty,  381. 
TROUGHS.     See  Gutters. 

are  removable  by  tenant,  187. 
TROVER.     See  Action,  Pleading  and  Practice. 
TUBE.     See  SpeaJcing-Tule. 
TUBS.    See  Casks,  Vats. 

removable  by  tenant,  197. 

when  pass  with  land,  389,  434,  456. 

TURF, 

unsevered,  parcel  of  the  freehold,  332. 

not  removable  by  tenant,  197. 

trover  lies  for,  643. 
TURN-TABLES, 

whether  an  allowable  deduction  from  the  ratable  value  of  realty, 
578. 
TURPENTINE.     See  Scrape. 

properly  classed  with  fructus  industriales,  333. 

way'going  crop  of,  when  to  be  removed,  363. 

the  subject  of  larceny,  669. 
TWISTERS, 

whether  they  pass  to  the  grantee  with  the  realty,  441. 
UNITED  STATES.    See  Public  Lands. 
UNITY.     See  Merger. 
UPON  AND  OVER.     See  Meaning. 

meaning  of,  9. 
USAGE.     See  Custom. 

does  not  aflfect  the  right  to  bees  and  honey,  329. 

UTENSILS, 

what  are  within  34  Geo.  III.,  c.  20,  §  27,  538.  ', 

VALUATION, 

a  stipulation  that  fixtures  are  to  be  taken  at  a  valuation,  shows  that 
they  are  not  otherwise  to  pass,  404. 


INDEX.  779 

[REFERENCES  ARE  TO  THE  BOTTOM  PAGES.] 

VALUATION,  continued— 

in  order  to  entitle  tenant  to  the  benefit  of  a  covenant  on  the  part 

of  the  landlord  to  pay  for  fixtures,  etc.,  erected  by  the  tenant, 

the  erections  must  be  such  as  are  authorized  by  the  lease,  524. 
where  the  agreement  as  to,   is  mutual,  and  the  obligation   of  the 

lessee  is  discharged  by  bankruptcy,  the  lessor  is  discharged  also, 

526. 
a  covenant  to  purchase  improvements  at  an  appraisal  can  have  but 

one  breach,  and  the  assignee  of  the  lessor,  after  breach,  does 

not  take  the  land  chargeable  with  the  covenant,  527. 
when   appraisement   by   appraisers   appointed   by   administrator   will 

bind  the  heir,  527. 
ex  parte  appraisement  not  binding,  528. 
a  court  of  chancery  cannot  compel  the  appointment  of  an  appraiser, 

528. 
nor  can  it  enforce  specific  performance  of  a  contract  to  purchase 

fixtures  at  a  valuation,   528. 
but  it  may  compel  vendor  to  permit  an  entry  to  make  valuation,  529. 
when  compensation  will  be  granted,  529. 
when  the  extent  of  lessor's  liability  may  be  ascertained  in  equity, 

529. 
time  when  the  valuation  shall  be  made,  530,  532. 
what  articles  are  included  in  the  stipulation  that  fixtures  are  to  be 

taken  at  a  valuation,  535. 
tenant's  right  to  possession  till  paid  for  improvements,  531,  532. 
setting  aside  appraisal  for  misconduct  of  appraisers,  532. 
covenant  to  renew  does  not  necessarily  imply  a  renewal  with  the 

same  covenants,  532. 
appraised  value  when  a  lien,  532,  533. 
how  determined,  530. 

how  determined,  when  tenant  retains  possession,  532. 
how  affected  by  failure  to  renew,  534. 

extension  for  one  day  insufficient  to  defeat  tenant's  rights,  534. 
in  condemnation  proceedings,   530. 
in  condemnation  proceedings  railway  company  has  the  same  right  as 

the  lessor,  534. 
proceedings  of  sole  arbitrator  enjoined,  528. 
when  appointment  of  appraisers  by  the  lessor  is  valid,  528. 
who  are  disinterested  persons,  528. 
without  hearing,  invalid,   528. 

when  lessor  can  maintain  equitable  action  to   determine,   530, 
option  to  purchase,  534. 

option  to  purchase,  effect  on  claims  of  lesROo's  creditors,  534,  546. 
election  once  made,  lessor  cannot  change,  534, 
right  to,  presumed  waived  after  thirteen  years,  535, 
tenant  retaining  possession  must  pay  rent,  532. 


780  INDEX. 

[REFBRENCBS  ABB  TO  THE  BOTTOM  PAOBS.] 

VALUATION,  continued- 
grantee  of  lessor,  when  liable,  527. 
assignee  of  lessor,  when  liable,  527. 

a   liquidator's   rights   are   no   greater  than   tenant's,   535. 
what  is  not  a  sufficient  defense  in  an  action  of  trover  brought  by 
lessee,  535. 

VALUE, 

relative,  of  land  and  fixtures,  as  affecting  the  right  of  removal,  116, 

136,  137,   221,  257,  383,  401,  463. 
as  affecting  articles  covered  by  insurance,  379. 

VANE, 

does  not  pass  with  the  land,  446. 
VAKNISH-HOUSE.     See  Building. 
removable  by  tenant,  150. 

VASES, 

of  marble,  removable  by  tenant  for  life,  279. 

when  pass  with  land,  396,  435. 

are  not  improvements,  10. 
VATS.     See  Caslcs,  Tubs. 

when  goods  and  chattels  in  order  and  disposition  of  bankrupt,  16, 
507. 

may  be  removed  by  tenant  during  the  term,  130,  131,  133,  139,  143. 

may  be  seized  on  fi.  fa.  against  the  tenant,  133. 

as  between  heir  and  executor,  299,  300. 

as  between  grantor  and  grantee  of  the  realty,  433,  456. 

trover  for  a  washing  vat,  652. 
VAULT-DOORS,  ETC., 

are  immovables  by  destination,  34. 

vault  removable  as  a  trade  fixture,  143,  150. 

replevin  for,  625. 
VENDOR   AND   VENDEE.     See   Grantor  and  Grantee,   Mortgagor  and 

Mortgagee,  Trespass,  Trover,  Seller  and  Buyer. 
VENDOR 'S  LIEN.    See  Lien. 
VENEERING, 

mechanics*  lien  allowed  for,  429. 
VERANDA.     See  Porch. 

an   erection,  building  and  improvement,   within  the  meaning  of  a 
covenant  to  yield  up  in  repair,  etc.,  244. 
VESSEL.     See  Ship. 
VIDELICET  CLAUSE, 

effect   of,   251. 
VINES.     See  Grape  Vines,  Plants,  Hops. 
VISES, 

annexed  to  work-bench  by  screws  and  bolts,  not  fixtures,  381. 

goes  to  executor,  273. 


INDEX.  781 

[REFEBENCES  ABB  TO  THE  BOTTOM  PAQES.] 

VOID  DEED, 

crops  do  not  pass,  340. 
VOID  DEVISE, 

improvements  do  not  pass,  474. 
VOID  SALE, 

of  fixtures,  effect  as  to  mortgage  on  the  land,  479. 

WAGONS, 

in  a  sugar-mill,  are  not  fixtures,  21. 

WAGON-SHED.    See  Building. 

erected  by  tenant  for  life  of  a  farm,  not  removable,  171. 
WAGON-WAYS, 

materials  for,  whether  personalty  or  realty   by  custom,   311. 
WAINSCOT, 

when  removable  by  tenant,  146,  187,  189,  190,  196. 

not  removable  by  tenant  for  life,  265. 

as  between  executor  and  heir,  298,  300,  309. 

not  devisable  by  tenant  for  life  or  in  tail,  474. 

removal  of,  is  waste,  127. 

does  not  pass  with  land,  452. 

mechanics'   lien   allowed   for,   429. 

right  to,  of  unpaid  seller  reserving  title,  105. 

WALK.     See  Gravel,  Sidewalk,  Pavement. 
not  removable  by  tenant,  194. 

WALLPAPER, 

mechanics'  lien  allowed  for,  429. 

WALLS.     See  Party-Walls,  Stone  Walls,  Fold  Yard  Wall. 

of  brick,  inclosing  threshing-machine,  not  removable,  177. 

pass  to  heir  with  realty,  300. 

not  waste  to  pull  down  unless  fixed  to  the  freehold,  604. 

WARD.     See  Guardian  and  Ward. 
WAREHOUSE.     See  Buildings. 

WARRANTY.     See  Covenants. 

of  title  to  land,  what  is  a  breach  of  a  covenant  of,  482,  484,  660. 
of  title  to  trees,  is  warranty  of  personal  property,  376. 

WASHERS, 

in  dye-house,  right  to  as  between  tenants  in  common,  380. 

WASTE.     Seo  Game,  Action,  Equity. 
defined,  126,  264. 

by  destruction  of  dove-cote,  126,  604. 
removing  presses  not  waste  unless  fixed,  126. 
by  pulling  down  house,  127,  265,  310,  602,  607. 
by  destroying  wall  or  partition,  127,  604. 


782  INDEX. 

[REFERENCES  ABE  TO  THE  BOTTOM  PAQBS.] 

WASTE,  continuea— 

by  removing  door  and  check  posts,  127,  265. 

by  removing  furnace,  vats,  etc.,  130,  265. 

by   removing  windows,   264. 

by  removing  wainscot,  265. 

by  removing  benches,  265. 

by  plowing  up  strawberry  beds,  163. 

how  assigned,   604. 

not  waste  to  remove  things  not  annexed  to  the  freehold,  265,  284,  604. 

tenant  holding  without  impeachment  of,  232. 

action  of,  at  common  law  lay  against  whom,  128,  588,  589. 

Statutes  of  Marlbridge  and  Gloucester,  128,  129,  589. 

punishment  for  at  common  law,  589. 

damages  recoverable  under  these  statutes,  589. 

who  punishable   for  under  the  above  statutes,   590. 

action  of  depends  upon  privity,  590. 

who  entitled  to  maintain  the  action  of,  590. 

writ  of,  abolished  in  England,  590. 

writ  of,  obsolete  in  the  United  States,  591. 

what  is,  by  life  tenant,  265. 

when  removal  of  decayed  structures  is,  310,  611. 

does  not  lie  for  windmill  upon  posts,  15. 

injunction   against,   when   allowed,    by   remainderman    or   executory 

devisee,  606. 
defeated  party  in  ejectment  will  be  enjoined,  603. 

WATEE-CLOSETS.    See  Closets. 

■when  removable  by  a  tenant,  142,  146,  197. 

do  not  pass  with  the  land,  452. 
WATER-PIPES.     See  Pipes. 

removable  by  tenant,  141,  165,  194. 

occupier  of,  ratable,  568. 

when  do  not  pass  with  the  land,  402. 

how  taxable,  559,  560. 

are  removable,  113. 

are  personal  property,  104. 
WATER-WHEEL.     See  Motive  Power. 

a  fixture  passing  to  heir,  and  subject  to  dower,  297. 

and  gears  pass  on  sale  of  the  realty,  390. 

right  to  under  the  N.  Y.  statute,  as  between  heir  and  executor,  312, 

not  subject  to  extent,  538. 

are  fixtures,  526. 

WEIGHING-MACHINES.    See  Scales. 

right  to,  as  between  grantor  and  grantee  of  the  realty,  434. 
whether  an  allowable  deduction  from  the  ratable  value  of  realty, 

575,  578. 
go  to  executor,  273. 


INDEX.  783 

[REFEREyCES  ABB  TO  THE  BOTTOM  PAGES.] 

WEIGHT.     See  Size. 

when  article  a  fixture  by,  19,  38  et  seq.,  436,  443,  444,  543,  573,  578. 
WHAEF.    See  Dock,  Pier,  Barges. 
wharf -boat  is  a  part  of,  44. 
WHAT  CHEER  HOUSE, 

name  of  not  a  fiiture,  13. 
WHEEL, 

of  a  forge  or  mill,  not  subject  of  deodand,  679. 
WIDOW,     See  Dower,  Homestead,  Tenant  for  Life. 
WIFE.    See  Entirety,  Husband  and  Wife. 

WILL.     See  Bequest,  Devisee,  Heir  and  Executor,  Legacy,  Void  Devise 
WILLOWS, 

whether   they   pass   to   grantee  with    the   realty,    441. 
WIND.     See  Severance. 
WINDING-SHEET, 

property  in,  remains  in  executor,  325. 
WINT)LASS, 

in  slaughter-house,  passes  on  conveyance  of  the  realty,  391. 
WIND-MILL.     See  Pump. 

post-wind-mill,  not  aflSxed  to  realty,  removable  by  tenant,  15. 

post-wind-mill,  waste  does  not  lie  for,  15. 

post-wind-mill,  settlement  not  gained  by  taking,  15,   16,  583. 

right  to  vote  conferred  by  holding,  15,  586. 

sail  of,  whether  subject  of  deodand,  679. 

when  not  part  of  the  realty,  107, 

passes  with  land,  393,  396, 

mechanics'  lien  allowed  for,  429. 
WINDOW-CASEMENT, 

larceny  of,  671. 

WINDOWS.    See  Glass. 

parcel  of  freehold,  and  pass  with  the  house,  45,  453. 

not  subject  to  distress,  551. 

lent  to  tenant  by  landlord,  remain  the  property  of  landlord,  188. 

quaere  as  to  whether  removable  by  tenant,  188. 

quaere  as  to  whether  a  plate-glass  shop  front  is  a  window,  245. 

not  devisable  by  tenant  for  life  or  in  tail,  474. 

not  removable  by  tenant  for  life,  264. 

as  between  heir  and  executor,  298,  456. 

as  between  grantor  and  grantee,  455. 

not  subject  of  larceny,  667. 

WINDOW-SASHF^S.     See  Sa^h. 
larceny  of,  671. 
right  of  tenant  to  remove,  188. 
right  of  unpaid  seller  reserving  title,  105. 


784  INDEX. 

[REFERENCES  ABB  TO  THE  BOTTOM  PAOBS.] 

WINDOW   SCREENS, 

pass  with  tho  land,  389. 

WINDOW-SHUTTERS.     See  Shutters,  Shop-Shutters. 

removable  by  incumbent,  286. 

pass  to  the  heir  with  the  realty,  300. 

when  part  of  a  dwelling  in  a  case  of  burglary,  676,  677. 
WINE-PLANTS.    See  Plants. 

trover  for,  650. 

WING.     See  Addition. 

WIRES.     See  Electric  Fixtures,  Poles,  Bailway,  Street,  Telegraph,  Tele- 
phone. 
removable  by  lessee,  143,  413,  417. 
pass  with  realty,   396,    397. 
mechanics'  lien  allowed  for,  429,  431. 
not  subject  to  levy,  538,  546. 
how   taxable,   560,   562. 
who  is  an  occupier  of,  570. 

WIRING.     See  Electric  Fixtures. 

passes  to  grantee,  449. 
WOOD.    See  Timber,  Trees. 

cut  on  land  does  not  pass  to  the  grantee,  434,  435. 
WOOD-CUTTING  MACHINE, 

portable,  a  mere  chattel,  20. 

does  not  pass  with  the  realty  to  the  grantee,  435. 
WORK  DONE  AND  FIXED.     See  Meaning. 

meaning  of,  8. 
WORM, 

in  distillery,  removable  by  tenant,  140. 

when  subject  to  distress,  551. 
YARD  FIXTURES.     See  Meaning. 

what  are,  12. 


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